CR.A/769/2000 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 769 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= MANGILAL HIRARAM VISHNOI & 1 - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR JM PANCHAL for Appellant(s) : 1,MR RAJESH M AGRAWAL for Appellant(s) : 1 - 2.MR SUNIL M AGRAWAL for Appellant(s) : 1 - 2.MR KJ PANCHAL for Appellant(s) : 1, MR HL JANI, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, MR HARIN P RAVAL for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 17/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) CR.A/769/2000 2/55 JUDGMENT 1. Present appeal is filed by the appellants, original accused under Section 36[B] of Narcotic Drugs and Psychotropic Substances Act, 1985 [hereafter to be referred to as the “said Act”] read with Section 374[2] of the Code of Criminal Procedure, 1973 challenging the judgment and order of conviction dated 31st July, 2000 rendered by the learned Additional Sessions Judge, Court No.8 of City Sessions Court, Ahmedabad, in Sessions Case No. 292 of 1998, whereby the appellants­accused have been held guilty of charge of offences punishable under Section 8[c] read with Sections 21 and 29 of the said Act. Under the said judgment and order of conviction, the learned trial Judge has convicted the accused and imposed rigorous imprisonment for 13 years and imposed fine of Rs. 1,50,000/­ each for the offence punishable under Section 8[c] read with Sections 21 and 29 of the said Act. Both the accused have been further sentenced to undergo rigorous imprisonment for 13 years and imposed with fine of Rs. 1,50,000/­ each for offence punishable under Section 21 read with Section 29 of the said Act. In default of payment of fine for both the above offences, the learned trial Judge has imposed rigorous imprisonment of one year on both the accused. 2. The appellants have challenged the order of conviction and sentence on various grounds mentioned in para­19 of the memo CR.A/769/2000 3/55 JUDGMENT of appeal alleging that the order of conviction and sentence passed by the learned trial Judge is manifestly erroneous, illegal and the same is violative of principles of appreciation and evaluation of evidence in a criminal trial. Certain mandatory provisions have not been complied with by the investigating agency and the members of the raiding party, and that the accused have been wrongly found linked with the crime. The accused ought to have been acquitted saying that the case of prosecution is highly improbable and that no weightage should be given at least to the statements allegedly recorded under Section 67 of the said Act as a legal piece of evidence. If the statements allegedly recorded under Section 67 of the said Act are taken away from the set of evidence considered by the learned trial Judge, the prosecution case would automatically fail. Each witness examined by the prosecution is a person apparently interested in the result or outcome of the trial. Their evidence was required to be scanned closely and the error committed in evaluating evidence has resulted in conviction of the appellants­accused. On the other hand, respondent no.2 [original complainant] – Department of Revenue Intelligence [hereafter to be referred to as “DRI”] has come out with strong resistance against all the grounds agitated by the accused and has submitted that the findings recorded by the learned trial Judge are CR.A/769/2000 4/55 JUDGMENT absolutely legal and there is no element of either perversity or procedural fatal infirmity. Respondent no.1 – State of Gujarat has supported the stand taken by the respondent no.2 DRI. To appreciate the rival contentions before us, it is necessary to state facts emerging from the complaint filed by the respondent no.2 as “Statutory Officer” in the court of City Sessions Judge, Ahmedabad. 3. For the sake of convenience, the parties in this appeal are referred to as in their original position before the trial court, i.e appellants as “original accused” and respondents as “complainant” or “DRI”. 4. Merrymel George is a public servant being Intelligence Officer of DRI who filed a complaint acting in discharge of his official duty and therefore, the Court decided to register a case against the accused as Sessions Case on 3.10.98 without entering into formality contemplated under Section 200 of Cr.P.C. According to the complainant, officers of DRI, Ahmedabad, had received information revealing that a package containing narcotic drug would be taken delivery of from Diamond Transport Corporation, Ahmedabad on 6th July, 1998. Therefore, the officers of DRI acting on that information kept surveillance over the premises and as no one approached to take delivery of the suspected package, the DRI officers entered into the premises of Diamond Transport CR.A/769/2000 5/55 JUDGMENT Corporation, Ahmedabad and examined the package under the cover of panchnama. At the relevant point of time, the godown keeper did not desire that the search be conducted in presence of a gazetted officer or in presence of a Magistrate though offered in terms of the scheme of Section 50 of the said Act. On examination of the package in presence of panchas, godown keeper and officers, it was, inter alia, found that there was a light brown coloured powder substance in the parcel in seven polythene bags. These bags were further packed in seven stitched cloth bags and were bearing marks as “555” and they had been concealed in a briefcase, which, in turn, was put in a plastic package. According to the prosecution, it was stated that the said package contained steel utensils weighing 55 kg and 10 packages of iodized salt of 1 kg each of “Captain Cook” brand and 2 pieces of bricks and big hesian cloth bag were also packed in the said package. According to the complainant, the said light brown coloured powder substance found and recovered was tested by the officers in the godown itself in presence of panchas with narcotic testing kit and the test resulted positive for narcotic drug – white Heroin. It is alleged that when panchnama was being drawn, accused no.1 entered the premises and inquired about that very package. So, officers present there decided to search accused no.1. The accused CR.A/769/2000 6/55 JUDGMENT no.1 was given an option of being searched in presence of a gazetted officer or a Magistrate. The accused no.1 did not desire to be searched before either of them and therefore, personal search of accused no.1 was carried out in presence of two panchas who were taken by the Intelligence Officers of the DRI. Accused no.1 had presented zerox copy of a lorry receipt to the person present in the godown and that lorry receipt was seized during the search panchnama on the very day i.e on 6th July, 1998. The DRI officers seized 6.480 kgs. of Heroin in the search. The person who had entered the office of the Diamond Transport Corporation and had inquired and claimed package was one Mangilal Bishnoi – accused no.1. Search panchnama was concluded at 20.30 hrs on 6.7.98 at the place of search and as mentioned in the panchnama, samples were taken from all 7 polythene bags which were given identification marks and sealed by the DRI officers so that the same can be sent to Forensic Science Laboratory for recording final conclusion as to light brown powder found to be Heroin during the first preliminary test by the testing kit available with the officers. Statement of one Devji Khania, partner of Diamond Transport Corporation was recorded on the very day under Section 67 of the said Act. It is the say of the prosecution that the package in question was booked CR.A/769/2000 7/55 JUDGMENT from Mumbai on 2.7.98 and for taking delivery of the said package, accused no.1 had approached and search operation was in progress in the premises and during the search, the DRI officers recovered muddamal Heroin packed in polythene bags which were further packed in cloth bag and were put in a VIP briefcase. Devji Khania stated that the package was posing as if the same was containing stainless steel utensils. According to the prosecution, statement of accused no.1 Mangilal Bishnoi was recorded by DRI officers under Section 67 of the said Act and the accused admitted in his statement that he had arrived from Mumbai on 4.7.98 in the morning at Ahmedabad; that he was residing at Mumbai and on 6th July, 1998, at the instance of one another person, he had approached the office of Diamond Transport Corporation to take delivery of the package booked under lorry receipt no. 041882 from Mumbai. Accused no.1 was told by that other person that the package of which delivery was to be taken of, contained Heroin. He was told that other person was not approaching the transport company personally. Say of the accused no.1 is that in the evening, he was to deliver package to that other person. Accused no.1 was formally arrested on 7th July, 1998 at Ahmedabad. According to the prosecution, post­seizure investigation was on. On 7th July, 1998, i.e on the next day, accused no.2 Chautharam CR.A/769/2000 8/55 JUDGMENT Bishnoi approached the office of Diamond Transport Corporation to take delivery of the package which was already opened and Heroin was seized. Accused no.2 was having consignee and consignor copies of lorry receipts and the key purported to be of VIP briefcase. These articles were recovered and seized from the accused no.2. Accused no.2 had approached the transporter for taking delivery and for handing over the said package to the other persons on whose behalf, he had undertaken to receive delivery of the package from the Diamond Transport Company. Authorized officer of the DRI recorded statement of accused no.2 under Section 67 of the said Act after serving him summons. It is alleged that the accused admitted certain crucial facts. According to accused no.2, he was asked to take delivery of the package from the Diamond Transport Corporation and for this purpose, he had come to Ahmedabad and was to receive a sum of Rs. 1,000/­ for the work entrusted to him. He was also aware that after taking delivery of the package and on its further delivery to the other person, he would receive Rs. 1000/­. Name of the other person was disclosed to be Kirtibhai Vora. Accused no.2 was told that, that other person, namely, Kirtibhai Vora was not coming to the office of the Diamond Transport Corporation and he was indicated that there was some problem in the package and that is why, other CR.A/769/2000 9/55 JUDGMENT person, namely, Kirtibhai Vora was to pay him the money. Thus, both the accused, according to the prosecution were aware that the substance concealed in the package was objectionable substance and both of them had knowingly come to take delivery of the package containing narcotic drug having misdeclaration. Availability of fax copy of lorry receipt with accused no.1 and recovery of consignee and consignor copies of the very receipt, that too, with a key of the briefcase, indicated that both the accused had committed an offence punishable under Section 8[c] read with Sections 21 and 29 of the said Act. Accused no.2 was arrested on 9th July, 1998. Both the accused were produced before the learned Metropolitan Magistrate and remanded to judicial custody. During the post­seizure investigation, one authorized officer of the DRI recorded statement of one Prakash Mayakal under Section 67 of the said Act. According to this witness, both the accused were residing in Room Nos. 2 and 3 of the same building in which this Prakash Mayakal was residing and this witness had identified photographs of both the accused persons. Prosecution is totally silent as to the efforts made to trace out other person revealed to be one Kirtibhai Vora. It is not the say of the prosecution that there is nobody like Kirtibhai Vora. The prosecution has confined its case against both the appellants­ CR.A/769/2000 10/55 JUDGMENT accused as persons involved in illicit trafficking of narcotic drug, viz. Heroin. It is alleged that the samples drawn at the time of seizure, sealed and marked specifically were sent to FSL for chemical analysis and test report received from FSL confirmed that the samples answered positive for Heroin, a prohibited narcotic drug under the provisions of the said Act. 5. Mr. K.J. Panchal, learned counsel appearing for the appellants­ accused has made two­fold arguments. First fold of his arguments is that the finding recorded by learned trial Judge is erroneous and for this purpose, arguments advanced on behalf of the accused persons before the trial court and referred to in the judgment under challenge need a fresh look. When the Court is exercising powers under Section 374 read with Section 386 of Cr.P.C., it has jurisdiction to re­write the entire judgment keeping in mind set of evidence available on record. In the present case, it is necessary to undertake that exercise, because, learned trial Judge has grossly erred in appreciating the evidence in the background of number of other probabilities emerging from the oral as well as documentary evidence. When it is in evidence that no transporter would deliver a package on zerox copy or fax copy, whether accused no.1 could have ever gone to the godown or office of the Diamond Transport Corporation is a question. Presence of officers of DRI could have CR.A/769/2000 11/55 JUDGMENT been noticed by the accused no.1. Even for the sake of argument, it is believed that accused no.1 had gone in the office of Diamond Transport Corporation, he would not have claimed parcel by handing over fax copy of lorry receipt. No convincing proof has been brought on record to show that accused no.1 is resident of Mumbai and accused nos. 1 and 2 are neighbours in the same building except bare statement of one witness recorded under Section 67 of the said Act. Bombay being metropolitan city, it was possible for the prosecution to collect better evidence and the prosecution was under an obligation to lead best evidence to convince the court as per the settled rule. Identification by photographs of accused persons was not appropriate procedure. Responsible officers of DRI must be aware that identification of an accused through photograph has been deprecated in number of cases So, to link the accused no.1 with accused no.2, nature of evidence led by the prosecution ought not to have been accepted as reliable or cogent piece of evidence. It is also submitted that if accused nos. 1 and 2 were really neighbours, then, accused no.2 would not have dared to enter the office of Diamond Transport Corporation on the next day, i.e on 7th July, 1998. When the first person sent for the purpose has not returned either to accused no.2 or to other person, namely Kirti Vora, accused no.2 would CR.A/769/2000 12/55 JUDGMENT not have gone in the office of Diamond Transport Corporation with original lorry receipts; both consignor's and consignee's copy. So, the story placed by the prosecution is highly improbable and the case of the prosecution ought to have been disbelieved on the point of absence of probability. It is further say of the accused that the key allegedly recovered from accused no.2 ought to have been cogently proved by the prosecution by leading independent evidence that the key recovered is, in reality, the key of the briefcase which was broke opened during the search operation. There is no such evidence of convincing nature available on record. According to Mr. Panchal, when it is the case of the prosecution that DRI officers had kept watch and surveillance on the godown, then, what prevented them in continuing surveillance for some more hours. There is nothing on record to show, prima facie, that the information received by the Revenue Intelligence was indicating something about time of arrival of person at the office of Diamond Transport Corporation. Undue haste made by the officials in showing recovery and seizure of muddamal Heroin makes the case of the prosecution doubtful. It is also submitted by Mr. Panchal that the learned trial Judge has also not considered oral as well as documentary evidence from where it emerges that mandatory procedural scheme of Sections 50 and 41 CR.A/769/2000 13/55 JUDGMENT of the said Act have not been complied with. Rest of the arguments are practically in terms of the grounds mentioned in the memo of the appeal. 6. Second fold of argument of Mr. Panchal is that if the Court is inclined to accept the case of the prosecution as placed and records a finding that conviction recorded by the learned trial Judge is legal and there is no element of perversity in the findings, then, the Court, at least, should reduce substantive sentence from 13 years to 10 years, i.e punishment minimum prescribed under the Statute. Heroin seized is of commercial quantity. Status of both the accused is apparently of a victim or at the most, a carrier. They cannot be equated with the persons who are responsible for percolating drug habits to the mass and therefore, they are not even as per the case of the prosecution, distributors nor manufacturer of such heinous drug. It is therefore submitted that there is no reason for the trial court to impose punishment more than minimum prescribed and the substantive sentence imposed should be held to be harsh and the same be reduced to the minimum, i.e. of 10 years. In response to a query raised by the Court, Mr. Panchal has fairly accepted that no sustainable argument is possible to be advanced for reduction of the amount of fine imposed by the learned trial Judge and in default CR.A/769/2000 14/55 JUDGMENT punishment. 7. According to Mr. Harin P. Raval, learned counsel appearing for complainant­Department of Revenue Intelligence, judgment under challenge is absolutely legal and in accordance with law. It is submitted that there was no reason for the learned trial Judge to accept the evidence of the last witness examined during the course of trial, i.e. P.W.5 Prakash Mayakal. Undisputedly, this witness is resident of Mumbai and he has proved that the accused persons are residents of Mumbai. This is not a case of identification of accused through photographs. Photographs were seen at the time of recording of statement of this witness, but the accused persons have been again identified by this witness as persons residing in his neighborhood. Personal knowledge of this witness has not been challenged substantively and this witness has stood to the test of cross­examination. Both the accused must be knowing each other. It is satisfactorily proved by the prosecution that accused no.1 was apprehended on 6th July, 1998 with fax copy of the lorry receipt. If the original receipt was with accused no.2 who was apprehended on 7th July, 1998, how that fax copy was found from accused no.1 on the previous day is a question and the same has not been explained by the accused persons. It is also important to note that how could a person in Ahmedabad receive a lorry receipt CR.A/769/2000 15/55 JUDGMENT of a parcel booked from Mumbai. It appears that accused no.1 must have gone to ascertain whether parcel had reached in the office of Diamond Transport Corporation. He may not be aware that some persons were inside the office and they had undertaken some procedure and he was caught. Zerox copy must have been shown to the godown keeper and this sequence of evidence has been proved satisfactorily by examining relevant witnesses and their evidence has been rightly appreciated by the learned trial Judge. It is argued by Mr. Raval that the evidence led by prosecution appears to be more probable. Value of Heroin worth more than 6 Kg was very high. It emerges from the set of evidence that a person keen to have delivery of the material if remains in dark for about 24 hours, then, doubting the bona fide or for any other reason that may be there in the mind of accused no.2, owner of the material may have attempted to have delivery of the very package with original document. So, visit of accused no.2 on the next day should not be viewed as highly improbable event. On the contrary, it is most probable situation and visit of both the accused found to be neigbours at Mumbai, in the office of Diamond Transport Corporation shows the conduct of guilty persons. Mr. Raval has drawn our attention to scheme of Section 35 of the said Act which reads as under: CR.A/769/2000 16/55 JUDGMENT “Sec.35: Presumption of culpable mental state. 35. Presumption of culpable mental state. (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.­­In this section "culpable mental state" includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact. 1. Ins. by Act 2 of 1989, s. 9 (w.e.f. 29­5­1989). 2. Ins. by s. 10, ibid. (w.e.f. 29­5­1989). 374 (2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” 8. It has come in evidence that accused no.1 was aware that the package for which he was going to claim contained Heroin and accused no.2 was also aware that something objectionable was there in that package and therefore only, he was offered Rs. 1,000/­. As the accused no.1 had arrived at Ahmedabad on 4th July, 1998 as per the evidence led by prosecution, it was not possible for the officers of DRI to recover railway or bus tickets from accused no.1. So, both the persons having clear knowledge about the objectionable material had attempted one after another to have possession of that objectionable article. It is possible to infer from the set of evidence that accused persons were aware that they were entrusted the work to see that delivery of Heroin sent from Mumbai to Ahmedabad is taken and the same is delivered to person or persons indicated to them. Disclosure of CR.A/769/2000 17/55 JUDGMENT name of other person by the accused persons themselves or some success in getting clue about the name of another person would not take out any of the accused from the category of persons against whom presumption of culpable mental state could be made. So, evidence led by the prosecution was required to be appreciated in that background that authorized officers had searched godown of Diamond Transport Corporation. There are no procedural lapses in drawing samples and sending the same to FSL for chemical analysis. Use of test kit available with the DRI was also satisfactorily proved by the prosecution witnesses examined. 9. Mr. Raval, after taking us through provisions of Sections 41 and 50 of the said Act and the documents in this regard produced by the prosecution, has submitted that there is no violation of any of the statutory mandatory provision and all witnesses have stood the test of cross­examination made by the defence counsel. So, it is submitted by Mr. Raval that no error can be said to have been committed by the trial court in evaluating