Appeals-957-393-71-326 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.957 OF 2005 Prem Mahant Sahani @ Tadipar ... Appellant V/s. The State of Maharashtra ... Respondent ALONG WITH CRIMINAL APPEAL NO.393 OF 2005 Satish Gajanan Khadpe ... Appellant V/s. The State of Maharashtra ... Respondent AND CRIMINAL APPEAL NO.71 OF 2006 Degreeprasad Tameshwar Paswan @ Muchchad ... Appellant V/s. The State of Maharashtra ... Respondent AND CRIMINAL APPEAL NO.326 OF 2007 Suresh Dudhnath Yadav ... Appellant V/s. The State of Maharashtra ... Respondent Mrs. B.P. Jakhade for the Appellant in Cr. Appeal No.393 of 2005. Mr. Gole for the Appellant in Cr. Appeal No.326 of 2007. Mr. Arfan Sait for the Appellants in Cr. Appeal Nos.957 of 2005 & 71 of 2006. Mrs. A.A. Mane, APP, for the Respondent-State. CORAM:- A.M. THIPSAY, J. DATED :- 7 TH OCTOBER, 2011. Appeals-957-393-71-326 2 Dixit ORAL JUDGMENT : 1. All these four Appeals can be conveniently disposed of by this common judgment as the Appellants in these Appeals, who all were accused in N.D.P.S. Special Case No.21 of 2002, were convicted and sentenced by the learned Special Judge for Greater Bombay by one and the same Judgment and Order. The Appellants were accused of having committed offences punishable under Sections 29 and 20(b)(ii) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as “the NDPS Act”). After holding a trial, the Special Judge found all of them guilty and sentenced each of them to suffer R.I. for 10 years and to pay a fine of Rs.1,00,000/- and, in default, to suffer R.I. for six months. The Appellants, being aggrieved by the order of conviction and the sentences, have filed the above separate Appeals. 2. The Appellant in Criminal Appeal No.957 of 2005 is the original Accused No.3, the Appellant in Criminal Appeal No.393 of 2005 is the original Accused No.1, the Appellant in Criminal Appeal No.71 of 2006 is the original Accused No.4 and the Appellant in Criminal Appeal No.326 of 2007 is the original Accused No.2. For the sake of convenience, the Appellants shall be referred to by their positions in the trial Court. Appeals-957-393-71-326 3 Dixit 3. The said sessions case arose on the basis of a complaint filed by Shri G.B. Wakle, Inspector of Customs, Narcotics Cell, Customs Preventive Collectorate, Mumbai. The case of the complainant, as appearing from the complaint (Exhibit-1), may, in brief, be stated as under. . That, on 18th October, 2001, the officers of the Narcotics Cell of the Customs Preventive Collectorate, Mumbai, received an information to the effect that ; One Mr. Satish, a drug trafficker, is dealing in purchase and sale of Charas, called Hashish, a Narcotic Drug. Today i.e. on 18th October, 2001 at about 16:30 hrs., he is likely to deliver about 3 kgs. of Hashish to his customer at Band Stand in the garden opposite Bombay Garage, Chowpatty, Mumbai. If you keep a watch at the above place at the above time, you will get the Hashish with Mr. Suresh. Appeals-957-393-71-326 4 Dixit 4. That, pursuant to the said information, the officers of the Narcotics Cell of the Customs Preventive Collectorate, Mumbai, went and kept surveillance inside the Chowpatty Garden, Band Stand, Opposite Bombay Garage. Two persons were called and requested to witness the events that would take place in their presence i.e. to act as Panchas. The said Panchas were apprised of the information. 5. That, after some time, a person (Accused No.1) wearing yellow coloured shirt and black coloured pant came to the spot. His movements were felt suspicious by the officers and, therefore, he was apprehended. On being asked, the Accused No.1 disclosed his name as Satish Gajanan Khadpe. The officers then disclosed their identity to the Accused No.1 and asked him in the presence of the Panchas about the contents of the plastic shopping bag, which the Accused No.1 was carrying. The Accused No.1 stated that the bag was containing Charas weighing about 2.500 kgs. and, that, the same was meant for delivery to his customer. The Accused No.1 further disclosed that he had received the said Charas from one Suresh Dudhnath Yadav (the Accused No.2). The officers then, in the presence of Panchas, disclosed the provision of Section 50 of the NDPS Act and made the Accused No.1 aware of his right to be searched by and/or before a Appeals-957-393-71-326 5 Dixit Gazetted Officers or a Magistrate, to which the Accused No.1 replied in negative. Thereafter, the officers took the personal search of the Accused No.1 in the presence of Panchas and some blackish substance was found in the plastic shopping bag, which had been kept inside the outer plastic shopping bag. The substance had a peculiar odour. A small quantity thereof was tested with the help of Field Testing Kit and the test gave positive indication in respect of the presence of T.H.C. i.e. Hashish, a Narcotic Drug. The said substance was weighed and found to be weighing 2.400 Kgs. Three representative samples of the said blackish substance were taken and put in three plastic pouches and sealed. The remaining bulk of the substance was transferred into a separate plastic carry bag and kept inside a corrugated box. The seizure was effected by packing and labelling the samples as also the main bulk of the substance under a Panchanama and the signatures of the Panchas were obtained on the Panchanama as well as on the packets containing the samples. . The statement of the Accused No.1 was recorded under the provisions of Section 67 of the NDPS Act, wherein he, inter alia, disclosed that what was found with him was Charas and, that, the said Charas was given to him by Suresh (Accused No.2); and, that, the said Suresh (Accused No.2) was Appeals-957-393-71-326 6 Dixit going to meet him near Shivaji Fish Market at about 7:30 p.m. to 8:00 p.m. on the same day. Pursuant to the said statement, the officers took the Accused No.1 to Shivaji Fish Market and on the Accused No.1 pointing out the Accused No.2, the Accused No.2 was also apprehended. The Accused No.2 admitted having delivered Charas to the Accused No.1 and, that, he had been waiting for Accused No.1 for the purpose of receiving the payment for the said Charas. The Accused No.1 as well as the Accused No.2 were brought to the office of the Narcotics Cell and the further statement of the Accused No.1 was recorded. The statement of Accused No.2 was recorded, wherein he, inter alia, stated that the said Charas had been received by him from one Prem Sahani alias Tadipar (the Accused No.3) on the same day at about 2:00 p.m. and, that, the said Prem Sahani (Accused No.3) lived in Azad Nagar, Link Road, Goregaon. The officers of the Narcotics Cell and the Accused No.2 then went to Goregaon and after reaching Link Road, the Accused No.2 pointed out to the Accused No.3, who was sitting in a Fish Stall near Milan Hotel, Azad Nagar, Goregaon (West). The Accused No.3 was apprehended. He disclosed his name as Prem Sahani. He admitted having given the consignment of Charas to the Accused No.2 and further disclosed that the said Charas was given to him by one Degreeprasad T. Paswan alias Muchchad (Accused No.4). The Accused No.3 stated that the Appeals-957-393-71-326 7 Dixit said Muchchad (Accused No.4) stayed in Bhagat Singh Nagar and volunteered to point out the said Muchchad (Accused No.4). The officers of the Narcotics Cell then took the Accused No.3 to Bhagat Singh Nagar and on reaching there, the Accused No.3 pointed out to the Accused No.4. The Accused No.4 was apprehended and, on being asked, disclosed his name as Degreeprasad. The Accused Nos.2, 3 and 4 were brought back to the office of the Narcotics Cell for further inquiry. The recording of the statement of the Accused No.2 under the provisions of Section 67 of the NDPS Act, which had been left incomplete, was continued. The statement of Accused No.3 was also recorded. Thereafter, the statement of the Accused No.4 was also recorded. . Thereafter, all the four accused were arrested on 19th October, 2001. The sample packet was delivered in the office of Dy. C.C. on 19th October, 2001. After analyzing the sample, it was reported by the Chemical Laboratory that it was Charas and was covered under the NDPS Act, 1985. The corrugated box containing the main bulk of the contraband seized was deposited in the Customs Godown on 1st November, 2001. 6. Thus, the case in short is that the Accused No.1 was found with Charas weighing about 2.400 Kgs. and, that, he had received the same from Appeals-957-393-71-326 8 Dixit the Accused No.2. That, the Accused No.2 had received the same from the Accused No.3 and, that, the Accused No.3 had received the same from the Accused No.4. From whom the Accused No.4 had received the same could not be discovered by the Investigating Agency. 7. It may be noted at this stage itself that there is no allegation that any contraband was seized or recovered from any of the Accused Nos.2, 3 and 4. What was recovered was only from the Accused No.1. The case against the Accused Nos.2, 3 and 4 is, therefore, based only on their own statements recorded under the provisions of Section 67 of the NDPS Act, which are said to be confessional in nature, and on the statements made by the co-accused under the same provisions implicating themselves and the co-accused. 8. As the Appellants were in jail and undefended, they were given legal aid. Smt. B.P. Jakhade, the learned Advocate for the Appellant in Criminal Appeal No.393 of 2005, Shri Ganesh Gole, the learned Advocate for the Appellant in Criminal Appeal No.326 of 2007 and Shri Arfan Sait, the learned Advocate for the Appellant in Criminal Appeal Nos.957 of 2005 and 71 of 2006, were appointed from the Legal Aid Panel to prosecute the Appeals. Appeals-957-393-71-326 9 Dixit 9. I have heard Smt. B.P. Jakhade, the Advocate for the Appellant in Criminal Appeal No.393 of 2005, Shri Ganesh Gole, the learned Advocate for the Appellant in Criminal Appeal No.326 of 2007 and Shri Arfan Sait, the learned Advocate for the Appellant in Criminal Appeal Nos.957 of 2005 and 71 of 2006. I have also heard Smt. V.R. Bhosale, the learned APP for the Respondent-State, and Smt. A.A. Mane, the learned Counsel for the Narcotics Cell, Customs Preventive Collectorate, Mumbai. 10. I have been taken through the entire evidence and the entire record of the trial Court by Shri Ganesh Gole and Shri Arfan Sait. Shri Sait has also relied upon several authoritative pronouncements of the Apex Court in support of the contentions advanced by him. 11. The material against the Accused Nos.2, 3 and 4 is only in the form of their own confessions and the confessions made by the co-accused. The Accused No.1, on the other hand, is said to have been actually found in possession of the Charas and is said to have, further, confessed about his guilt before the officers from the Narcotics Cell. Thus, the nature of material that is available against the Accused No.1 is different from that against the Accused Nos.2, 3 and 4. Considering this position, it would be appropriate to first consider the evidence against the Accused No.1 and to examine Appeals-957-393-71-326 10 Dixit whether it satisfactorily establishes that the Accused No.1 has committed the offences in question. 12. The prosecution examined nine witnesses during the trial. . The first witness is Gajanan B. Wakle, the complainant himself. . The second witness is Raghunandan N. Koppikar, also an Inspector of Customs Preventive working in Narcotics Cell, Bombay, at the material time. He was also a member of the team that had laid a trap and apprehended the Accused No.1. He is the one who had recorded the statement of the Accused No.1-Satish under the provisions of Section 67 of the NDPS Act (Exhibit-38). . The third witness for the prosecution is Hasamuddin L. Shaikh, also an Inspector attached to the Narcotics Cell at the material time. He was also a member of the team that had laid a trap and apprehended the Accused No.1. He had recorded the statement of the Accused No.2-Suresh under the provisions of Section 67 of the NDPS Act (Exhibit-41). Appeals-957-393-71-326 11 Dixit . The fourth witness is Rajendrasingh B. Chauhan, who was attached to the Narcotics Cell as Superintendent of Customs. He was also a member of the team that had laid a trap and apprehended the Accused No.1. On instructions from the Superintendent Kohak, he had, along with the team of officers of the Narcotics Cell, gone along with Suresh (Accused No.2) and apprehended the Accused Nos.3 and 4. He is the one who had recorded the statement of the Accused No.3 - Prem Sahani - under the provisions of Section 67 of the NDPS Act (Exhibit-44). . The fifth witness Dharmendrasingh Dayanand, a preventive officer attached to the Narcotics Cell at the material time, was also a member of the team that had laid a trap and apprehended the Accused No.1. He is the one in whose presence the search of the Accused No.1-Satish was taken. He had also gone to Shivaji Fish Market and was a member of the team that had apprehended the Accused No.2-Suresh. On the instructions of Superintendent Kohak, he had also gone to Goregaon along with the Accused No.2 and was a member of the team that had apprehended the Accused No.3-Prem Sahani and Accused No.4-Degreeprasad. He is the one who had recorded the statement of the Accused No.4 under the provisions of Section 67 of the NDPS Act (Exhibit-48). Appeals-957-393-71-326 12 Dixit . The sixth witness Umeshwar Nath Sinha is the Chemical Examiner, who had examined and analyzed the samples received by him on 19th October, 2001. . The seventh witness E.R. Narayanan is also an Inspector attached to the Narcotics Cell of Customs at the material time. He was also a member of the team that had laid the trap and apprehended the Accused No.1-Satish. He was also a member of the team that had gone to Shivaji Fish Market and had apprehended the Accused No.2-Suresh. He was also a member of the team that had gone to Goregaon and apprehended the Accused No.3-Prem Sahani and Accused No.4-Degreeprasad. . The eighth witness Vijaykumar S. Shahasane was the Superintendent working in the Narcotics Cell at the material time. He was the head of the team that had arranged for the raid. He himself had received the information from one of his informers, pursuant to which the trap was organized. He is the one who had taken the leading and active part in the search of the Accused No.1-Satish and the seizure of the Charas allegedly found with him. . The nineth witness Ravindra S. Varekar is one of the Panch Witnesses, Appeals-957-393-71-326 13 Dixit who had allegedly witnessed the apprehension and search of the Accused No.1-Satish and the recovery of Charas from the bag held by him. He, however, did not support the prosecution case and was declared hostile. According to him, his signatures were taken by the officers from the Narcotics Cell, on blank papers. 13. The first point which requires determination is ‘whether the story of apprehension of the Accused No.1, as stated, and recovery of the Charas weighing about 2.400 Kgs. from him can be safely accepted and believed as true?’. 14. Before proceeding further, it must be observed that one of the Panchas to the alleged search and recovery having turned hostile and the other Panch not having been examined as a witness, the evidence in that regard is only of the officers from the Narcotics Cell. Undoubtedly, there is no rule or law that the evidence of the officers of the raiding team cannot be accepted without the same having been corroborated by atleast one independent witness. The fact, however, remains that when there is no independent witness to support the search and seizure and when the same is intended to be proved only on the basis of the evidence of officers of the raiding team, such evidence needs to be carefully scrutinized. Appeals-957-393-71-326 14 Dixit 15. The case of the prosecution is that the secret information in that regard was received by the Superintendent Mr. Shahasane (PW-8) and, that, on his instructions ‘to be prepared for some special duty’, the complainant G.B. Wakle (PW-1), R.N. Koppikar (PW-2), H.L. Shaikh (PW-3), R.B. Chauhan (PW-4), Dharmendra Singh (PW-5), E.R. Narayanan (PW-7) and others proceeded towards the spot - i.e. towards Girgaon Chowpatty. The Panchas were brought by Koppikar (PW-2). It also appears that some of the officers including Mr. Shahasane (PW-8) were waiting in the garden and the others were waiting outside the garden. The Accused No.1-Satish was actually inercepted by Shahasane (PW-8). Shahasane (PW-8), complainant Wakle (PW-1) and Koppikar (PW-2) were actually present inside the garden. Shaikh (PW-3), Chauhan (PW-4), Dharmendra Singh (PW-5), Narayanan (PW-7) were standing outside the garden. 16. The evidence of Shahasane (PW-8), complainant Wakle (PW-1) and Koppikar (PW-2), therefore, needs to be scrutinized properly with respect to the alleged search and recovery of the Charas from the Accused No.1-Satish. 17. In his evidence, Wakle (PW-1) – the complainant – stated that he along with Shahasane (PW-8) and others had been waiting in the garden Appeals-957-393-71-326 15 Dixit opposite Bombay Garage, Chowpatty and, that, at about 4:45 p.m. Shahasane (PW-8) intercepted one person who was wearing a yellow shirt and black pant; and, that, on being questioned by Mr. Shahasane (PW-8), that person gave his name as Satish Gajanan Khadpe (i.e. the Accused No. 1). According to Mr. Wakle (PW-1), the Accused No.1 was having a carry bag in his hand. That, when Mr. Shahasane (PW-8) questioned the Accused No.1, the Accused No.1 said that the carry bag contained Charas weighing about 2.500 Kgs. It is thereafter that the officers of the Narcotics Cell disclosed their identity to the Accused No.1. It is thereafter that Shahasane (PW-8) told the Accused No.1 that he wanted to search him and told him that he had an option to get himself searched in the presence of a Magistrate or a Gazetted Officer. According to Wakle (PW-1), the Accused No.1 stated that he might be searched in the presence of Gazetted Officer. That, the Accused No.1 was offered the personal search of the officers of the raiding team, but he declined the same. According to this witness, “thereafter thorough and systematic search was conducted.” 18. The version of Koppikar (PW-2) is also similar. According to him, when the Accused No.1 was noticed, Shahasane (PW-8) identified him and immediately signaled the other officers. That, the Accused No.1 was Appeals-957-393-71-326 16 Dixit encircled by Shahasane (PW-8), Wakle (PW-1) and this witness, along with two Panchas. It is, thereafter, that the officers disclosed their identity to the Accused No.1 and Shahasane (PW-8) told the Accused No.1 about the information that he had received against him. The version of this witness is that Shahasane (PW-8) then asked the Accused No.1 as to what he was carrying in the carry bag and, that, thereupon the Accused No.1 told Shahasane that it contained Charas weighing about 2.500 Kgs., for delivery to his customers. It is thereafter that Shahasane (PW-8) apprised the Accused No.1 of the provisions of Section 50 of the NDPS Act. This witness does not state what was the reply given by the Accused No.1, but proceeds to state that thereafter the carry bag, which was with the Accused No.1, was opened. 19. The evidence of Shahasane (PW-8) is to the effect that the Accused No.1 was apprehended and the first thing that was done thereafter was that he was asked his name. The Accused No.1 gave his name as Satish Gajanan Khadpe and stated that the plastic bag in his hand was containing 2.500 Kgs. of Charas and, that, he had come there to deliver it to his customers. According to Shahasane (PW-8), the Accused No.1 gave further information also to the effect that he had got the said Charas from one Suresh (the Appeals-957-393-71-326 17 Dixit Accused No.2) at Goregaon. It is thereafter that the Accused No.1 was informed about the information which the officers from the Narcotics Cell were having against him and, that, the officers told him that they wanted to search his bag for Narcotics, ‘to which the Accused No.1 agreed’. It is thereafter that, that the Accused No.1 was made aware of his right to be searched by and/or before a Gazetted Officer or a Magistrate, as contemplated under Section 50 of the NDPS Act. The claim of this witness is that the Accused No.1 declined the said offer and, that, he did not want any Magistrate or Gazetted Officer for the search. 20. I have carefully considered the evidence of these witnesses who are mainly concerned with the seizure and recovery of the Charas from the Accused No.1. 21. Since it is primarily on the basis of the evidence of the officers from the Narcotics Cell that a conclusion regarding the fact of recovery and seizure of Charas from the possession of Accused No.1 is required to be drawn, their evidence needs to be subjected to very careful scrutiny. It must be kept in mind that they all being officers from the Narcotics Cell and members of the raiding party, are bound to concur on certain aspects of the case, in conformity with the record of the case which has been made by Appeals-957-393-71-326 18 Dixit them. One is not therefore to be instantly satisfied about the truth of their version because these evidence seems to be in conformity with one another on all major happenings. Their evidence is, therefore, required to be judged in the background of the entire circumstances of the case. 22. Before proceeding further, an important aspect of the matter may be dealt with. It was contended by the learned Advocates for the Appellants that there had been no compliance with the provisions of Section 50 of the NDPS Act. It has been pointed out that Wakle (PW-1) in his evidence stated that the Accused No.1 said that he wanted to be searched before a Gazetted Officer, but still no such search was conducted and the Accused No.1 was searched without producing him before any Gazetted Officer. Undoubtedly, non-compliance of the provisions of Section 50 of the NDPS Act would be fatal to the case of the prosecution. However, Mrs. Mane, the learned Counsel for the Narcotics Cell, Customs Department, has drawn my attention to a decision of the Supreme Court of India in the case of State of Himachal Pradesh Vs. Pawan Kumar, reported in AIR 2005 SC 2265, and contended that the provisions of Section 50 of the NDPS Act would not apply to the search of baggage, article or container carried by the person searched. In the present case, the trial Court has proceeded on the footing Appeals-957-393-71-326 19 Dixit that the provisions of Section 50 of the NDPS Act were applicable and, that, they had been complied with. The trial Court did not proceed on the basis that the compliance with the provisions of Section 50 of the NDPS Act was not necessary, as what was being searched was only the plastic bag that was being carried by the Accused No.1. However, a reading of the reported judgment cited by Mrs. Mane makes it clear that Their Lordships of the Supreme Court specifically considered the question as to whether the meaning of the words “search any person” occurring in sub-section (i) of Section 50 of the NDPS Act would include within its ambit the search of any bag, briefcase, article or container that is being carried by such person. Their Lordships held, after noticing the previous judgments delivered by the Apex Court, that Section 50 of the NDPS Act can have