- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.1216 OF 2008 APPEAL NO.1216 OF 2008 APPEAL NO.1216 OF 2008 1.Smt.Laxmibai Balram Khatik 2.Smt.Kamlabai Usal Khatik ...Appellants vs. 1.Shri A.K.Singh Intelligence Officer, Narcotic Control Bureau Mumbai. 2.The State of Maharashtra ...Respondents WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL NO.1246 OF 2008 APPEAL NO.1246 OF 2008 APPEAL NO.1246 OF 2008 Franky Paul Francis ...Appellant vs. 1.Mr.A.K.Singh Intelligence Officer Narcotics Control Bureau Mumbai ...Respondents Mr.Ayaz Khan for the Appellant in Cri.Appeal No.1246/2008 Ms Nilofar Saiyad for the appellant in Cri.Appeal no.1216/2008 Mr.Mandar Goswami for Respondent No.1-N.C.B. in Criminal appeal No.1246/2008 Ms Rutuja Ambekar and Mr.D.N.Salvi for Respondent-N.C.B. in Criminal Appeal No.1216/2008 Mr.Y.S.Shinde, A.P.P. in both the Appeals. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 20, 24,25,26th 2009 : FEBRUARY 20, 24,25,26th 2009 : FEBRUARY 20, 24,25,26th 2009 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. I have heard the submissions made by the learned counsel appearing for the parties. On 6th January 2009 it was brought to the notice of this court that out of substantive sentence of 5 years, the Appellants have already undergone sentence for four years and seven months. Therefore, the Appeals were ordered to be placed at the end of the admission board for final hearing. Accordingly, I have taken up the Appeals for - 2 - final hearing. 2. Criminal Appeal No.1216 of 2008 is filed by the accused 2 and 3. Criminal Appeal no.1246 of 2008 has been preferred by accused 1. Accused 1 to 3 have been convicted for the offence punishable under section 29 read with section 8(c) and section 21 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act). The Accused No. 1 to 3 have been also convicted for the offence punishable under section 21 (b) r/w sections 8(c) and 29 of the said Act. The Accused Nos.1 to 3 have been sentenced to suffer R.I. for 5 years and to pay fine of Rs.10,000/- each for both the offences. They have been sentenced to pay a fine of Rs.10,000/- each for both the offences. In default they have been sentenced to suffer S.I. for one month. The Accused 1 has also been convicted for the offence punishable under section 25 r/w 21 and 29 of the said Act and has been sentenced to suffer R.I. for 5 years and to pay fine of Rs.10,000/-. In default of the payment of fine he has been directed to suffer S.I. for one months. The Accused no.4 Mohammed Sardar Wali Mohammad Sohail has been acquitted. 3. Briefly stated the case of the prosecution is that the officers of Narcotic Control Bureau received a specific information that two ladies from Madhya Pradesh had delivered substantial quantity of Heroin to one Mr.Franky Paul Francis - 3 - residing at Room No.4, Afshar Building, Shahid Bhagatsingh Marg, Mumbai 400 001 about 9.00 hours. The intelligence note was accordingly prepared and placed before the Superior Officers. As per the orders of the Superior Officer of Narcotic Control Bureau, a team of the officers along with two panch witnesses rushed to the said Room No.4 of the Afsar Building. The case of the prosecution is that a raid was conducted at Room No.4. The Accused no.1 opened the door. The officers introduced themselves. The panch witnesses entered room no.4. He was informed about the intelligence note and the fact that the officers were desirous of searching the room. When they entered the room no.4, they noticed presence of three ladies. One was introduced by the accused no.1 as his wife and the two other ladies were the accused Nos.2 and 3. Apart from that the son of accused No.1 and two young daughters and sisters of accused No.1 were present. On search, four packets were recovered. Two of which were wrapped with sooteh tapes containing some powder and the remaining two were transparent polythene packets containing brown colour powder. It was found that there were two cloth pieces stitched in triangular shape having laces. The case of the prosecution is that the cloth which was used by the accused no.2 and 3 for concealing packets containing Heroin which were brought by them from the State of Madhya Pradesh at the instance of accused no.4 and delivered to accused no.1. - 4 - 4. The officers of the raiding party tested the powder from each packet and it was revealed that the packets contained Heroin. Thereafter, two samples of 5 gms each were drawn and the same were put in polythene sachets which were heat sealed and the same were put in envelopes which were sealed with NCP seal no.2. The total weight of the brown colour powder was found to 3 kgs. The bulk quantity of heroin was kept in a large polythene bag, it was put into a carton marked as "B" which was closed with adhesive tape. The carton was labelled and tied with jute string seal with NCB Seal no.2. Two empty scotch tape packets, 2 empty tape packets, 2 empty transparent polythene packets and 2 triangular pieces of cloth were put in to another carton marked as "P" and labelled and heat sealed with NCB Seal no.2. 5. Personal search of the accused nos.1 to 3 was conducted. According to the prosecution the accused were informed about their right to claim search in presence of a Gazetted Officer or Magistrate. They declined to have search before a Gazetted Officer or a Magistrate. In the personal search of the accused nos. 2, two travelling tickets were recovered. Nothing was recovered from the personal search of the accused nos.1 and 3. 6. According to the prosecution, the statements of the accused nos.1 to 3 under section 67 of the said Act were - 5 - recorded. It was revealed from the statements that at the instance of the accused no.4, the accused nos.2 and 3 carried Heroin to Mumbai and delivered to accused no.1 in room no.4 on 5th June 2004. 7. One of the two samples was forwarded to DYCC, Mumbai on 7th June 2004 for qualitative analysis and the other one was forwarded to FSL., Kalina for quantitative analysis. Vide its report dated 9th June 2004, DYCC confirmed that the sample contained heroin. The report dated 3rd August 2004 from FSL stated that the contents of the sample was heroin along with other opium Alkaloids and the percentage of heroin was 1.53%. 8. After completion of investigation, Mr.A.K.Singh filed a complaint against accused nos. 1 to 4. A separate complaint was filed by the same officer against accused No.4. 9. It will be necessary to refer to the evidence adduced by the prosecution. The first witness examined by the prosecution is Mr.P.S.Namboordri who is the Investigating Officer. He was at the relevant time Inspector of Central Excise attached to Narcotic Control Bureau (for short NCB), Mumbai. The witness recorded the intelligence note as against accused nos.1 to 3. He was the member of the raiding party. He recorded the statement of the accused no.4 under section 67 of the said Act. He also recorded the intelligence note about - 6 - the accused 4 and apprehended him. P.W.No.2 is one Mr.C.I.Kedari. He was at the relevant time Intelligence Officer of NCB, Mumbai. He was a member of raiding party who recorded the statement of the appellant in Appeal No.1246 of 2008 (accused no.1). P.W.No.3 is one Mr.B.S.Mulay who had drawn panchnama of the seizure. He deposited the contraband in the godown and prepared test memorandum. P.W.No.4 Mr.M.Henry Verghese recorded the statement of accused no.4. P.W.No.5 is one Mr.Narayan Panigrahi who was working as a Hawaldar with NCB. He carried the second sample to FSL on 8th June 2004. P.W.6 Shabina Hasan is the panch witness to the alleged seizure. She was declared as hostile. P.W.7 is the Captain Victor Elijah. He was the employer of the accused no.1. P.W.No.8 is Jaffar Allarakiya who is the owner of the Afshar Building. P.W.9 is Mr. Jayendra D. Shetty who was the original tenant in respect of the room no.4 in Afshar Building. P.W.10 is one Mr.Sanjay Prabhavale who is the Chemical Analyser attached to FSL. P.W.11 is Mr.Felix D’Souza who is attached to NCB who carried the first sample to take DYCC on 7th June 2004. P.W.12 is Mr.Keith John Sanchis who was the Assistant Director of NCB at the relevant time. He was a custodian of NCB seal and intelligence note. P.W.13 is Mr.A.P.Patil, Superintendent of NCB who was the incharge of the godown. P.W.14 is Mr.A.K.Singh who was the Inspector of Central Excise attached to NCB, Mumbai. He is the complainant who filed the complaint. He recorded the statements of - 7 - accused no.1 as well as accused nos.2 and 3. P.W.15 Mr.M.S.A.Khan is the person who deposited the seized cash with the Government Treasury. P.W.16 is Mr.K.R.Pande who attempted to serve summons to the panch witness. 10. The learned counsel for the accused no.1 has made detailed submission. His first contention is that P.W.14 Mr.A.K.Singh who was the Intelligence Officer attached to NCB, Mumbai has no authority to file the complaint. He invited my attention to the provisions of clause (d) of section 36(A) (1) of the said Act. He submitted that P.W.No.14 Mr.A.K.Singh was an officer of the Central Government. He submitted that as per clause (d) of sub section 1 of section 36-A, the Special Court can take cognizance of the offence either on police report or on the complaint made by an Officer of the State Government or Central Government authorised in this behalf. He invited my attention to the statement made by P.W.No.2 Mr.C.I.Kedari in his cross examination that in June 2004, NCB was under the control of Ministry of Home. He also invited my attention to the statement made by P.W.3 Mr.Mulay in his cross examination that in June 2004 NCB was under the control of Home Ministry. He pointed out that both the witnesses expressed inability to tell whether there was a notification empowering NCB Officers under the Ministry of Home to file a complaint. He invited my attention to the notification dated 27th September 1989 issued under clause (d) of sub section 1 - 8 - of Section 36-A of the said Act which empowers the officers of the NCB under the Ministry of Finance to file the complaints. He placed reliance on the information obtained under the Right to Information Act,2005 from the Ministry of Home Affairs of Government of India which shows that the NCB is working under the Department of Internal Affairs forming part of Ministry of Home Affairs. He therefore submitted that the complainant had no authority to file the complaint and the cognizance could not have been taken on the basis of the said complaint. 11. Inviting my attention to the evidence of the prosecution witnesses, he submitted that the entire prosecution case has been concocted. He pointed out that P.W.1 disclosed that immediately after 9.00 a.m, intelligence note was received that two ladies from Madhya Pradesh have delivered substantial quantity of Heroin to Mr.Franky Paul Francis residing at Room No.4 at Afshar building. He invited my attention to the seizure panchnama which notes that the recording of the panchnama started at 9.30 and was concluded at 12.15 in the afternoon. He invited my attention to the evidence of P.W.9 Mr.Jayendra D. Shetty. He pointed out that the said witness stated that on 5th June 2004 he received a telephonic message from the office of NCB when he was at his residence at Virar. He pointed out that the witness stated that he travelled from Virar to Office of NCB and he reached the office of NCB at 12.00 noon. He submitted that the witness stated that as soon - 9 - as he reached the NCB office at 12.00 noon, he saw the accused no.1 sitting in the office. He submitted that it is not possible to believe that P.W.9 was informed telephonically at his residence at Virar and that he reached the office of NCB at 12.00 noon. He pointed out that the panchnama shows that the seizure was completed at 12.15 in the afternoon, but P.W. 9 stated that the accused no.1 was present in the office of NCB at 12.00 noon. He stated that the only panch witness examined by the prosecution has turned hostile. He submitted that even according to the prosecution witnesses and in particular P.W. 8, prior to year 2004 the accused no. 1 was occupying the room no.7 on the ground floor of the Afshar Building. He stated that the accused no.1 shifted to room no.4 on the 1st floor of the said building with mutual consent of the hotel owner. He pointed out that even according to the said witness, the rent receipt continued to be in the name of the accused no.1 in respect of room no.7. He pointed out that P.W. 8 admitted that there was no written agreement between himself and the accused no.1 as regards room no.4 on the 1st floor. He pointed out that the said witness who is the landlord deposed that room no.4 is situated on the 1st floor opposite the staircase. The witness stated that it was a single room with bath-room attached to it and the area of the room was 180 sq. ft., and all the rooms in the building were of the same size. Inviting my attention to the possession receipt relied upon by the prosecution which is at Exh.21, he - 10 - submitted that apart from the fact that the attesting witnesses to the receipt have not been examined, the receipt discloses that from P.W.No.9 Jayendra Shetty and two others, the accused no.1 has received a sum of Rs.1,00,000/- out of total consideration of Rs.3,00,000/- for exchange of premises of room no.7 on the ground floor with room no.4 on the first floor. He submitted that the receipt does not disclose that the possession of room no.4 was delivered to the accused no.1 at the time of payment of Rs.1 lac. He submitted that it is impossible to accept that in respect of the premises in Fort area at Mumbai, the transaction was actually effected without the accused no.1 receiving the entire consideration. He pointed out that the case of the prosecution is that the exchange was of the premises on the ground floor of the building in Fort area held by accused no.1 with the premises on first floor held by Mr.J.D.Shetty. He invited my attention to the relevant part of the evidence of P.W.9 (J.D.Shetty) who stated that one and half months prior to June 2004, the accused no.1 shifted to room no.4. He submitted that there was no cogent evidence on record to show that the accused no.1 who was admittedly occupying room no.7 on the ground floor of the Afshar building had occupied room no.4 on the first floor on the date of the incident. He pointed out that even in the cross examination he reiterated that the accused no.1 was sitting in the office of NCB when he reached there. His submission is that the entire prosecution case deserves to be - 11 - disbelieved. 12. He pointed out that there was a gross delay in forwarding the samples to DYCC and FSL. He pointed out that though the prosecution witnesses claimed that the weight of each sample was 5 gms, the report shows that the weight was 6.22 gms and 5.968 gms respectively. He submitted that the evidence of prosecution witnesses and in particular P.W. 3 Mr.Mulay establishes that the possibility of tampering with the samples cannot be ruled out. He placed reliance on the certain decisions of this court and Apex Court in support of his contention. 13. The learned counsel appearing for the accused nos.2 and 3 in support of their Appeal adopted the submissions made by the learned counsel for accused no.1. Shee submitted that no one had seen the accused nos.2 and 3 entering the room no.4 on the 1st floor and the presence of the said accused in the room is itself doubtful. She submitted that the contraband has not been shown in possession of the accused nos.2 and 3 and therefore, there is no evidence to show that the accused nos. 2 and 3 are guilty of offence. 14. The learned counsel for the NCB while opposing the Appeal preferred by accused nos. 1 submitted that there is a clear authorization in favour of the officer of NCB who filed the - 12 - complaint. He submitted that though the NCB may have been shifted from the control of Ministry of Finance to Ministry of Home for the administrative purpose, the officers of NCB continue to have authority under clause (d) of section 1 of section 36-A. 15. He submitted that though the panch witness may have turned hostile, the oral testimony of the other prosecution witnesses has clearly established the seizure of contraband from the room in possession of the accused no.1. He submitted that the prosecution witnesses have proved that the accused No. 1 was in possession of the said room no.4 on the 1st floor. He submitted that the fact that the accused no. 1 was in possession of the contraband has been clearly established. He placed reliance on the various decisions of the Apex Court. He submitted that the difference in the weight as reflected from the record is very negligible and only on the basis of the said difference, the prosecution case cannot be discarded. The learned counsel for the NCB appearing in the Appeal preferred by accused nos.2 and 3 submitted that the presence of the accused nos.2 and 3 has been admitted and therefore an inference will have to be drawn regarding their conscious possession of the contraband. She submitted that there is no explanation regarding the presence of accused nos.2 and 3 in room no.4. She pointed out that a travelling ticket was seized from accused nos.2 and 3. He, therefore submitted no - 13 - case is made out for interference. 16. At the outset, it will be necessary to deal with the first submission made by the learned counsel for the accused no.1. It will be necessary to refer to clause (d) of sub section 1 of 36-A of the said Act which reads thus : (d) A Special court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. 17. The question is whether the officer who filed the complaint (P.W.14 A.K.Singh) was authorised to file the complaint. On this aspect it will be necessary to refer the evidence of the prosecution witnesses. P.W.1 Mr.P.S.Namboodri stated that in the month of June 2004, he was working in the office of NCB, Mumbai. In the cross examination he stated that in June 2004, NCB was under the control of Ministry of Home. He stated that he was not aware as to whether as far as Ministry of Home is concerned, a notification empowering NCB officers to work under the provisions of the said Act was issued. P.W. 3 Mr.B.S.Mulay also admitted in his cross examination that NCB was under the control of Ministry of Home - 14 - in June 2004. He stated that earlier he was an officer of Central Excise Department and he joined NCB on deputation. He also expressed ignorance as to whether a notification empowering him to act under the said Act was issued by the Home Ministry. 18. It will be also necessary to refer to the evidence of P.W.no.14 Mr.A.K.Singh. He stated that in 2004, he was attached to NCB as an Intelligence Officer. He proved the complaint filed by him on 4th August 2004. The question is whether P.W.14 who was admittedly working at the relevant time as Intelligence Officer attached to NCB working under Home Ministry was authorised to file the complaint. Reliance has been placed on the notification dated 27th September 1989. The said notification reads thus : . Notification no.S.O.763 (E), dated 27th September 1989- In exercise of the powers conferred by Clause (d) of sub section (1) of Section 36-A of the Narcotic Drugs and Psychotropic Substances Act,1985 (61 of 1985), the Central Government hereby authorises the officers of and above the rank of Inspector in the Department of Customs, Central Excise, Narcotic, Revenue Intelligence, Central Economic Intelligence Bureau and the Narcotic Control Bureau under the Ministry of Finance, Government of India - 15 - for filing of complaints relating to an offence under the said Act before Special Courts. 19. The submission of the learned counsel for the accused no.1 was that the authorization under clause (d) of sub section 1 of section 36A of the said Act is to the Narcotic Control Bureau under the Ministry of Finance, Government of India for filing complaints relating to the offence under the said Act before the Special Court. The submission is that admittedly in June 2004, the NCB was under the Ministry of Home and therefore, the authority conferred by the notification dated 27th September 1989 was not in favour of the NCB working under the Ministry of Home. 20. From the submissions made across the bar it can be gathered that earlier the NCB was working under the control of Ministry of Finance and thereafter, the NCB started functioning under the control of Ministry of Home. Under clause (d) of sub section 1 of section 36A an authority can be conferred on an Officer of the Central or State Government to file complaint by issuing a notification. The Central Government by notification dated 27th September 1989 has conferred authority on the officers of the rank of and above inspector in the Department of Customs, Central Excise, Narcotic, Revenue Intelligence, Central Economic Intelligence Bureau and the NCB under the Ministry of Finance. Thus, the - 16 - intention of the Central Government was to confer authority on the officer of and above the rank of inspector of the NCB of Government of India. The reference to the Ministry of Finance is nothing but the mere description of NCB. The authority has been conferred on the officers of the NCB of Government of India. The fact that after the said notification was issued, the control of the NCB was shifted to another department of the Government of India is not at all relevant to decide the issue of authority under clause (d) of section 1 of section 36A of the said Act. The P.W.14 who filed the complaint continues to be an officer of NCB of Government of India and the fact that the NCB was at the relevant time working under the Ministry of Home will not deprive the P.W.14 of the authority to file complaint as admittedly he was at the relevant time working as an Intelligent Officer of NCB of Government of India. Therefore, the first submission canvassed by the counsel for the accused no.1 will have to be rejected. 21. Now turning to the second submission it will be necessary to refer to the deposition to P.W.1 who received the intelligence note in respect of the accused nos.1 to 3. He stated that immediately after 9.00 a.m., he collected intelligence note that two ladies from Madhya Pradesh have delivered substantial quantity of Heroin to one Franky Paul Francis at room no.4 of Afshar Building. At this stage, it - 17 - will be necessary to refer the seizure panchanama. The panchnama notes that recording thereof was started at 9.30 hours on 5th June 2004