1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NOS. 28 AND 29 OF 2004 CRIMINAL APPEAL NO. 28 OF 2004 Mr. Surendra Kerkar, Of full age, married, Son of Shri Anant Kerkar, Indian National, Resident of H. No.415, Morod, Sangolda, Bardez, Goa. Presently in the Central Jail at Aguada, Goa. Represented through his wife, Mrs. Milan Surendra Kerkar, r/o Sangolda, Bardez, Goa. ... Appellant versus Union of India, Superintendent of Central Excise, Anti­Smuggling Unit, Margao, Goa. Through their Special Prosecutor. ... Respondent Mr. Gopal Kanekar, Advocate for the Appellant. Mr. Joseph Vaz, Special Public Prosecutor for the Respondent. 2 CRIMINAL APPEAL NO.29 OF 2004 Mr. Nandkishore Arolkar, presently lodged in Central Jail, Aguada, Sinquerim, Bardez, Goa. ... Appellant versus Union of India, as represented by Officer­in­Charge, Anti­Smuggling Unit, Margao, Goa. ... Respondent Mr. V. P. Thali, Advocate for the Appellant. Mr. Joseph Vaz, Special Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 16TH AND 17TH NOVEMBER,2005 ORAL JUDGMENT These appeals are filed by A­1/Nandkishor Arolkar and A­2/Surendra Kerkar in Special Criminal Case No.26/2001 3 questioning the correctness of the Judgment/Order dated 21/29­4­2004 of the learned Special Judge, N.D.P.S. Court, Mapusa, convicting and sentencing them under Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 2001(Act, for short) to undergo 10 years R.I. and to pay a fine of Rs.1,00,000/­, in default to undergo S.I. for a period of one year. 2. A­3/Datta Kundnekar has been absconding. A­1/Arolkar and A­2/Kerkar were charged and tried under Section 21(c) of the Act upon a complaint filed by the Complainant­Shri M. P. Vaz, Superintendent of Central Excise, Anti­Smuggling Unit, Margao. The facts stated by the said Complainant/PW6 in the complaint and deposed to by him are that on 19­2­2001 at around 18.30 hours Inspector Cruz/PW7 had received information that Nandkishor Arolkar of given description would be carrying a substantial quantity of brown sugar from Calangute to Panaji at 20.00 hours on a blue coloured Chetak scooter bearing No.GA­01­M­2034 and one Surendra Kerkar of a given description would be accompanying him and the said information was reduced into writing by the 4 said Cruz/PW7 in Form D.R.1 and given to him in sealed cover. The same was produced at Exh.86. Further, it was the case of the Complainant that copies of the said Form D.R.I were sent to the Deputy Director and the Assistant Director, DRI, Mumbai and Goa and to the Commissioner of Central Excise, Goa and the same was also conveyed to the complainant's immediate superior namely, Assistant Commissioner Shri Monteiro who gave instructions and directions to conduct the raid and accordingly a team consisting of the said Shri Cruz, Shri U. B. Pandey, Nitin Parrikar, Jayant Hadconkar, all Inspectors and two sepoys and a driver was formed and all of them proceeded in a Departmental jeep and positioned themselves near Sai Service, at 19.30 hours along with two independent persons, namely, Arnaldo Costa/PW3 and Vaibhav Lotlikar and kept surveillance and upon reaching there the Complainant informed about the reliable information received by the said Cruz/PW7 and that at about 20.15 hours they spotted a blue coloured scooter having the said registration number which was coming from Porvorim towards Panaji with two persons sitting astride and they signalled to the rider to stop the scooter and after the rider stopped, the Complainant identified himself by his name and designation and 5 by showing the identity card informed the said riders about the said reliable information received by the said Cruz and on having asked them, they gave their names as Nandkishor Arolkar and Surendra Kerkar. Further, the Complainant stated that the Complainant informed the said two accused that they had a right to search the members of the raiding party as well as the panch witnesses which the said accused declined and in the meantime they noticed that the pillion rider A­2/Surendra Kerkar was carrying a white colour plastic bag with inscription "Nida Boutique" and then introduced the members of the raiding party and the panchas to both the accused and when asked about the contents of the bag A­1/Nandkishor Arolkar replied that it contained brown sugar, and as the place was not safe to conduct the panchanama, the Complainant asked both the accused to sit in the Departmental vehicle and thereafter they proceeded to the Customs House, Panaji and the scooter was brought by the sepoys Kambli and Cabral who had accompanied them and all along the journey A­2/Surendra Kerkar was carrying the said plastic bag in full view of the panchas and the members of the raiding party. The scooter followed the Departmental jeep within their visibility and on reaching the Customs House, Panaji, Shri Cruz/PW7 made both the accused aware individually of their right to be searched before a Magistrate or an 6 independent Gazetted Officer but both the accused declined the offer and opted to be searched before the Complainant and this option was exercised by both the accused individually whereupon PW7/Cruz took physical search of A­1/Nandkishor Arolkar and found with him a driving licence with photograph of A­1/Nandkishor which was seized and on physical search being taken of A­2/Surendra Kerkar, cash of Rs.20/­ and a driving licence was also found and the said cash was returned to A­2/Surendra Kerkar while the driving licence was seized. Further, the Complainant stated that the white coloured plastic carry bag which was kept by A­2/Surendra Kerkar on the table in full sight of the panchas and the two accused was opened and it was found containing two transparent double packed polythene bags containing brownish powder and the Complainant opened one of the said bags and took a pinch of it and tested the same with the help of a Field Testing Kit and the same was found to be positive for brown sugar­heroin and similarly a pinch of the brownish powder was taken from the second bag and the same was also tested positive for brown sugar­ heroin and then the contents of the said two double packed polythene bags were emptied into a large transparent polythene bag and thoroughly mixed and a pinch was tested with the Field Testing Kit and again it was tested positive for brown sugar­heroin and then the bag was weighed on a weighing scale and found to be 2.01 kgs. and thereafter two representative 7 samples of 10 gms. each were taken in two separate polythene bags, and were heat sealed and put in two brown paper envelopes, pasted with gum and on each of the envelopes the details of the seizure were recorded and then sealed with the brass seal with inscription "South Goa Anti­Smuggling Unit, Margao" and the signatures of both the panchas were taken on each of the said envelopes and so also signatures of both the accused as well as the Seizing Officer Shri Pandey and the said two envelopes were marked as Sample S­1 and Sample S­2 and the balance quantity of 1.990 kgs. was sealed and then put in a corrugated box and after all the edges were pasted with masking tape a white paper was pasted on the top of the corrugated box. The details and the description of the contents were recorded and then the corrugated box was tied with jute thread and sealed with the said brass seal and thereafter the white plastic bag with inscription "Nida Boutique" and also the two polythene bags with double packing were put in a brown envelope, pasted with gum, details of seizure and contents were recorded and were signed by the Seizing Officer Shri Pandey, the panchas and sealed with the brass seal with the said inscription. As per the Complainant, the entire quantity of 2.01 kgs. of brown sugar was valued at Rs.2 crores and the entire procedure was done under the panchanama which was signed by the panchas and the Seizing Officer, Shri Pandey and a copy of which 8 was given to each of the accused who had signed the panchanama as token of its receipt. Panchanama was produced at Exh.67. 3. Further, the Complainant stated that he issued summons to A­1/Arolkar on 19­2­2001 which was duly received by him and his statement was then recorded before him by the said Shri Pandey and in his statement A­1/Arolkar admitted the possession and transportation of 2.01 kgs. of brown sugar and stated that the same was given to him by A­3/Datta alias Bhai alias Nana Kundnekar and that the said brown sugar was meant for sale to a prospective buyer, etc. The complainant stated that he also issued summons to A­2/Kerkar on 19­2­2001 which was received and acknowledged by him and thereafter the statement of A­2/Kerkar was recorded in his presence by the said Shri Pandey, and, in his said statement A­2/Kerkar admitted that he had accompanied A­1/Arolkar to Panchdeep restaurant at Calangute and had seen A­3/Datta handing over the white coloured plastic bag to A­1/Arolkar and that A­1/Arolkar had given the said bag to him to hold as he was riding the scooter and which was to be delivered to one person at Miramar and that A­1/Arolkar on reaching Porvorim disclosed to him that the contents of the said carry bag were brown sugar. The statements recorded of A­1/Arolkar and A­2/Kerkar were produced at Exhs.90 and 92. Further, the Complainant stated that 9 A­1/Arolkar was arrested at 06.20 hours on 20­2­2001 after issuing a notice of arrest and likewise A­2/Kerkar was arrested at 06.15 hours on 20­2­2001 and thereafter he sent a report under Section 57 of the Act to the immediate Superior Officer Shri Monteiro, the Assistant Commissioner of Customs who acknowledged its receipt and a copy of the said report was produced at Exh.95. The Complainant stated that one of the samples of 10 gms. namely, S­1 was submitted to the Director of Food and Drugs Administration, Panaji, for analysis in sealed condition and the other sample namely, S­2 with the remnant quantity in corrugated box­Exh.A were submitted to the Warehouse at Panaji on the same day and later the said Chetak scooter bearing No. GA­01­M­2034 was also deposited in the Warehouse and the Warehouse Officer had acknowledged the receipt of the same, and, although the search was carried out of the respective residences of the accused nothing incriminating was found and thereafter summons were issued to Krishna S. Shirodkar/PW4, the owner of the said scooter and his statement was also recorded. Likewise, summons were also issued to Kundan Gadekar/PW5 and his statement was also recorded. Further, the Complainant stated that summons were also issued to A­3/Datta Kundnekar which were received by his brother Sunil but he failed to appear on the stipulated date and summons were also issued to the said Sunil Kundnekar 10 and his statement was also recorded. The Complainant stated that after the receipt of the report from the Laboratory he filed the said complaint. 5. The Complainant/PW6 in support of his case examined PW1/Mahesh Kaissare who confirmed having received an envelope on 20­2­2001 as per particulars given in his report and that the seals fixed on the same were intact and tallied with the specimen seal impression sent separately on a test memo and that the said envelope contained 11.16 gms. of brownish coloured powder which he analysed by taking 3 gms. as representative sample and found that the same contained 29.29% W x W of Heroin. PW1/Kaissare also confirmed that on 7­3­2002 he had received from the Special Judge, N.D.P.S. Court, Mapusa one sealed envelope marked as S­2 containing representative sample of brown sugar and a sealed brown coloured paper carton marked as Exh.A which carton he opened on 25­3­2002 and it was found to contain 2.055 kgs. of brownish powder of which he took 30 gms. of representative sample for analysis and found that it contained 30.66% W x W of Heroin. 6. The Complainant examined the Warehouse Officer namely, PW2/Fatima Noronha who produced complainant's forwarding letter at Exh.51 which shows that the sample was received by her at about 3.30 p.m. 11 on 20­2­2001. She confirmed that the Complainant on 20­2­2001 had come with 3 sealed packages and she had issued a godown receipt to him and that on 2­4­2001 the Complainant had come with a scooter bearing No.GA­01/M­2034 regarding which she had also made an entry on the Warehouse register. 7. The panch witness Shri Arnaldo Costa was examined as PW3 and he has corroborated the version of the Complainant. 8. PW4/Krishna Shirodkar stated that the Bajaj Chetak scooter bearing registration No.GA­01/M­2034 was purchased by him and thereafter it was given to his nephew PW5/Kundan Gadekar and that after using the same for a year and a half he had given the same to his nephew and the said nephew continued to have possession of the same till it was attached and later he came to know through the newspaper that it was attached as it was used for transporting of charas and his said nephew had told him that he had given the said scooter to his neighbour Arolkar at Shetyewado, Duler, Mapusa. 9. PW5/Kundan Gadekar stated that on 18­2­2001, A­1/Arolkar had come to him and told him that his scooter had broken down and he 12 wanted his(PW5's) scooter to tow his scooter and as such he gave the said scooter to him but did not return the scooter on the said night and when he went to his house on the evening of 19­2­2001 he was told by the mother and brother of A­1/Arolkar that A­1/Arolkar had met with an accident at Ponda and was admitted into a hospital and thereafter he came to know through a newspaper that A­1/Arolkar and another person were detained with brown sugar along with the scooter of which the registration number was also published. Inspector Shri Cruz was examined as PW7. 10. The learned Special Judge, after considering at length the evidence led on behalf of the Complainant came to the conclusion that the Complainant had established beyond reasonable doubt that the accused were found in illegal possession of brown sugar­heroin weighing about 2.01 kgs. for which they could not lawfully account. The learned Special Judge also came to the conclusion that the mandatory provision of Section 50 of the Act was duly complied with before taking the individual search of the accused and there was also compliance of Sections 42 and well as 57 of the Act. The learned Special Judge also observed that the endeavour on the part of the defence to create a doubt in the case of the Complainant was in vain and the exercise on the part of the defence that the statements recorded under Section 67 of the Act were not voluntary but was an exercise in 13 futility and on the contrary the said statements had gained further support to the case of the Complainant which was otherwise established on the basis of the evidence led by them. The learned Special Judge, therefore, held both the accused guilty and sentenced each of them, as aforesaid. 11. At the hearing of this appeal, Mr. V. P. Thali, the learned Counsel appearing on behalf of A­1/Arolkar has made certain submissions with reference to Section 53 of the Act. Before dealing with the said submission it would be advantageous to reproduce the Section which reads thus: "53. Power to invest officers of certain departments with powers of an officer­in­charge of a police station.­(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para­military forces or armed forces or any class of such officers with the powers of an officer­in­charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of 14 the department of drugs control, revenue or excise or any class of such officers with the powers of an officer­ in­charge of a police station for the investigation of offences under this Act". 12. Mr. Thali, referring to sub­section(1) of Section 53 of the Act submitted that there was no notification issued in favour of the Complainant conferring upon him the powers of an Officer­in­charge of a police station for purposes of investigation and relying on the case of Roy V. D. v. State of Kerala((2000) 8 SCC 590) Mr. Thali submitted that arrest and search by an officer not empowered or authorised, in violation of Sections 41 and 42 being per se illegal would vitiate the trial. In answer to the said submission, Mr. Joseph Vaz, the learned Special Public Prosecutor, appearing on behalf of the Complainant produced notifications issued by the Ministry of Finance, Department of Revenue dated 14­11­1985 bearing Nos.S.O.822(E), S.O.823(E) and S.O. 824(E) which read as follows:­ "S.O.822(E).­ In exercise of powers conferred by sub­section (1) of section 42 and section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers the officers of and above the rank of Sub­Inspector in the department of Narcotics and of and 15 above the rank of Inspector in the departments of Central Excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in section 42 within the area of their respective jurisdiction and also authorises the said officers to exercise the powers conferred upon them under section 67. S.O.823(E).­In exercise of the powers conferred by sub­section (1) of section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government, after consultation with all the State Governments hereby invests the officers of and above the rank of Inspector in the Departments of Central Excise, Narcotics, Customs, and Revenue Intelligence and in Central Economic Intelligence Bureau with the powers specified in sub­ section (1) of that section". S.O. 824(E). ­ In exercise of the powers conferred by sub­section (2) of section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers the officers, of and above the rank of superintendent(being officers of Gazetted rank and working in the executive field), in the departments of Central Excise, Narcotics, Customs, and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers specified in sub­section (2) of that section within 16 the area of their respective jurisdiction. 13. In the light of the production of the said notifications particularly notification dated 14­11­1985 bearing No.S.O.823(E) the submission of the learned Counsel Mr. Thali has got to be rejected. 14. The next submission of Mr. Thali is that the said notifications might have been issued by the Ministry of Finance, Department of Revenue but the Complainant had to show that the same were published on the Gazette. Mr Thali has referred to the case of I.T.C. Bhadrachalam Paperboards and another v. Mandal Revenue Officer, A.P. and others ((1996) 6 SCC 634) ) wherein the Apex Court dealt with the requirement of publication of a rule or order in the Official Gazette and has observed that the object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspapers or may be broadcast by radio or television. If a question arises when was a particular order or rule made, it is the date of Gazette publication that is relevant and not the date 17 of publication in a newspaper or in the media. In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, on a particular day(where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in Courts to refer to the Gazette whenever there is a doubt about the language of an Act, Rule or Order. This submission has been met by Mr. Vaz, with much effort, by producing a copy of the Gazette of India, Extraordinary, Part II­Section 3­Sub­Section (ii) dated 14­11­1985 wherein the said notifications namely, S.O.822(E), S.O.823(E) and S.O. 824(E) all dated 14­11­1985 have been published and in view of the said production, the second submission of Mr. Thali also deserves to be rejected. The third submission of Mr. Thali on this aspect is that after Goa became a State w.e.f. 30­5­1987, the Central Government was required to have a fresh consultation with the State Government before issuing any notification under Section 53(1) of the Act and such a consultation not having been made with the State of Goa, after its formation, any notification issued earlier is of no legal consequence. Mr. Thali in support of his submission has placed reliance on an unreported decision of this Court in Election Petition No.1/2002 dated 27­5­2005 in the case of Chandrakant Uttam Chodankar v. Dayanand Raju Mandrekar. In my view any reference to 18 the aforesaid decision is wholly irrelevant and misplaced. This submission has been met by Mr. Vaz, the learned Special Public Prosecutor, by placing reliance on Section 69 of the Goa, Daman and Diu Reorganisation Act, 1987 (Act of 1987 for short). In my view, Section 69 of the Act of 1987 is a complete answer to this submission. Section 69 of the said Act of 1987 provides that all Courts and Tribunals and all authorities discharging lawful functions throughout the existing Union Territory or any part thereof immediately before the appointed day shall unless their continuance is inconsistent with the provisions of this Act or until any provision is made by a competent legislature or other competent authority, continue to exercise their respective functions. Needless to say the officers empowered by the said three notifications are bound to continue to discharge their lawful functions throughout the State of Goa, then an existing Union Territory pursuant to the said notifications and without any further consultation from the State of Goa after formation of the Union Territory of Goa into State of Goa. DATE : 17TH NOVEMBER, 2005. 15. The Learned Counsels appearing on behalf of the accused have contended that the mandatory provisions of Section 50 of the Act have not 19 been complied with and that on that count, the accused deserve to be acquitted. Mr. V. P. Thali has placed reliance on the decision in the case of State of Punjab v. Balbir Singh((1994) 3 SCC 299) to contend that the provisions of Section 50(1) of the Act are mandatory and violation thereof per se would be fatal to the prosecution. Mr. Thali has also placed reliance on the case of State of H. P. v. Pawan Kumar((2004) 7 SCC 735) and has submitted that the matter whether the provisions of Section 50 of the Act are to be complied with in relation to a search of a bag, has been referred to a larger Bench. 16. Mr. G. Kanekar, the learned Counsel appearing on behalf of A­2/Surendra Kerkar has submitted that the offer in terms of Section 50(1) of the Act to be effective had to be made near Sai Service where the accused were accosted and not at the Customs House where the accused were searched. Mr. Kanekar has further submitted that the representation by the Complainant that he himself was a Gazetted Officer and, therefore, the search could be conducted before him was nothing but allurement given to the accused as held by this Court in the case of Koyappakalathil Ahamed Koya v. A. S.