1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.589 OF 2007 K. Ramesh, Age 47 years, Convict Prisoner No. C- 4087 undergoing sentence at Kolhapur Central Jail, Kalamba and Previously residing at MMDA Colony, 59/27, CHENNAI-106. ..Appellant. vs. 1. Mr B. S. Mulay, Intelligence Officer, Narcotics Control Bureau, Mumbai Zonal Unit, Mumbai 2. The State of Maharashtra. ..Respondents. Mr Murtaza Najni, Advocate for the Appellant. Mr H. V. Mehta and J.C. Satpute, Advocate for Respondent- N.C.B. Mr D.P. Adsule, A.P.P., for the State. 2 CORAM: A.R.JOSHI,J. DATE : 08TH MAY,2009. ORAL JUDGMENT: 1. This appeal is preferred by the original accused no.1 (hereinafter referred to as the appellant) against the impugned judgment and order dated 12th and 13th February, 2007 passed by the Special Judge for N.D.P.S. cases, Mumbai ( hereinafter referred to as “the Special Court”) in Special Case No. 95 of 2004. By the said impugned judgment and order the appellant was convicted for the offence under Sections 21 (c) r/w 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act) and was sentenced to suffer R.I., for ten years and fine of Rs. 1,00,000/-in default R.I., for one year. The appellant was acquitted for the offence under Section 29 r/w 21 (c), 28 and 30 of the N.D.P.S. Act. Accused No.2 was acquitted of all the charges on the ground that the prosecution i.e. Narcotics Control Bureau, Mumbai ( N.C.B. Mumbai for short )failed to establish case against accused no.2. As such, in the present appeal it is to be ascertained whether the evidence led before the Special Court was properly 3 appreciated and whether there is anything to interfere with the impugned judgment and order. 2. Heard rival submissions on various earlier dates and today also. It may be mentioned that the appellant is in jail and Mr Murtaza Najni, Advocate is State appointed for the appellant. 3. Prior to appreciating the rival submissions certain factual position and the case of the prosecution can be narrated, as under: 4. On 17.3.2004 the appellant was in process of travelling by a bus of National Travels and he was to board the bus at Vashi Flyover. At that time, on prior information, raid was conducted by the N.C.B. Officers in the presence of panch witnesses and the appellant was apprehended while he was going to board the luxury bus bearing registration No. KA-01-AC-786. After identifying the said appellant as the person mentioned in the source information, he was taken aside to the nearby Maruti van parked at the same spot, along with the panchas. Thereafter, the shoulder bag of green and black colour with “Travel” label on it, was searched. During search of the said bag two complan boxes weighing 500 grams each were found. On opening those boxes, sealed condition blister 4 packets were found therein. On opening these sealed packets, there was brown coloured powder substance packed in double polythene clear bags. These polythene bags were cut open from both the boxes one by one and a small quantity of, as the powder from the same, was tested with a narcotic field testing kit and the test indicated that the powder was Heroin. Three representative samples of 5 grams each were drawn from the total quantity of powder and put the same in three separate sachets. Detail panchnama was drawn and the sample packets were taken charge of N.C.B. Officers and the appellant was taken in custody of and brought to the N.C.B.,office. Usual procedure was adopted as to sending the samples to Deputy Chief Chemist and Forensic Science Laboratory, Kalina. 5. According to the case of N.C.B.,after apprehending the appellant on the spot his personal search was also taken. During the said search one Motorola mobile handset, one bus ticket and a bill of hotel, besides Rs.900/- cash were found in his possession. The cash amount was returned to the appellant. During the investigation four statements of the appellant were recorded. First, on 18.3.2004 being Exh.15, second on 19.3.2004 being Exh.20, third on 29.3.2004 being Exh.23 and last one on 21.5.2004 being Exh.28. It is also the case of the prosecution that 5 during such statements recorded under Section 67 of the N.D.P.S.Act, role of the accused no.2 was revealed and as such he was also impleaded in the matter as co-accused. Accordingly, statement of accused no.2 was also recorded under Section 67 of the N.D.P.S. Act. Also, according to the case of the prosecution, the test reports from the concerned laboratories were received and the samples were found to be of narcotic contraband Heroin and having the purity of 28-28% of Heroin. At this moment, it must be mentioned that said aspect as to purity of the samples was emphasized much during the arguments on behalf of the appellant in order to canvas the proposition that whatever allegedly found with the appellant was not a commercial quantity i.e., it was not the narcotic contraband more than 250 grams, inasmuch as there is nothing before the Court to come to the conclusion that it was in fact 1 kg powder found in the two cartons of complan boxes. This defence on behalf of the appellant shall be dealt properly at the appropriate stage. 6. It may be mentioned that in order to substantiate the charges against both the accused, the prosecution examined totally 12 witnesses. P.W.1 is the Officer who received information and he lodged the complaint. He is also the Officer who reduced the said information in 6 writing and forwarded it to the Superior Officer. P.W.2 is the main Investigating Officer, a raiding party member. P.W.3 is also the another raiding party member, Officer of N.C.B. P.W.4 is the staff member of the N.C.B.,who carried the sample to the Laboratory. P.W.5 is the Chemical Analyser. P.W.6 is the Officer of N.C.B.,who arrested Accused no.2. P.W.7 is the Superintendent of the N.C.B., immediate superior to whom the said information was forwarded for taking action. P.W.8 is the Assistant Director of N.C.B.,and during the relevant time was incharge of godown at which the bulk contraband was stored and subsequently brought to the Court after one year of such lodging. P.W. 9 is the Receptionist in hotel Shiva at Vashi, where accused no.1 was staying prior to he was apprehended by N.C.B. P.W.10 is the Manager of the said hotel, ‘Sun Beam’ and he deposed as to the stay of the appellant in the said hotel. P.W.11 is the panch regarding search and seizure panchnama conducted on the spot when the appellant accused was apprehended on the night of the incident of 17.3.2004 under Vashi flyover. P.W. 12 is the last prosecution witness, office assistant of the travel agency which issued bus ticket to accused no.1 for his travel on the relevant night. At this juncture, it must be mentioned that it is defence of the appellant that he was 7 taken away from his house on the relevant night by the N.C.B.,officers and that he was falsely implicated in the matter and the contraband was foisted on him. This defence has been decided by the Special Court in the light of the evidence of P.W. Nos. 9, 10 and 12, inasmuch as they are the witnesses for showing that accused was staying in hotel Sun Beam and thereafter on the relevant night he was in process to board the luxury bus on the ticket issued by the travel agency. 7. Again, it must be mentioned that the mobile handset Article no.1, bulk quantity Article no.2 and the tickets of the National Tourists, bill of Hotel Shiva is Exh.11. Again, on this aspect as to the said Exh.11, it is argued on behalf of the appellant that such bills are not proved and that they cannot be taken into account. However, considering the substantive evidence of P.Ws. 9, 10 and 12 such defence cannot be accepted as good. 8. Main gravamen of the argument advanced on behalf of the appellant is that there is non-compliance of provisions of Section 50 of the N.D.P.S.Act, inasmuch as allegedly search of the shoulder bag which the appellant was carrying with him and that in fact he was taken in custody by the N.C.B., officers from the place of the luxury bus upto the police van and that the search was 8 conducted at the police van. On this aspect, attention of this Court is drawn to the evidence of P.W.11, panch witness, to the fact that he did not know what happened in the said vehicle when the search was conducted. On this count, the learned A.P.P.,appearing for the N.C.B.,submitted that considering it convenient and the secluded place for taking the search and getting samples from the contraband, it was decided to have search ordeal done in the police vehicle and considering dimensions of such vehicle it is hardly possible that all the persons and in fact the panch witnesses can be inside the vehicle, so also to be in the very close proximity. It is further submitted that definitely as per the substantive evidence of panch witness, it cannot be understood that they were not knowing as to what was being done by the N.C.B.,officers during such search. On this aspect of search of the person as contemplated by Section 50 of N.D.P.S. Act, 1985 there are counter arguments on behalf of the learned A.P.P., appearing for the N.C.B., by putting reliance on the following authority. (1) (1999) 8 S.C.C., 257 Kalima Tumba vs. State of Maharashtra and Anr. 9 9. By taking the shelter of the said authority it is submitted on behalf of the appellant that search of a packet cannot be contemplated as a search of the person and usually not attract the provision of Section 50 of the N.D.P.S. Act, 1985. On this aspect, considering the rival submissions and considering the reasoning given by the Special Court while accepting that it is not a case in which provisions of Section 50 of the N.D.P.S.,Act shall be attracted, in the opinion of this Court, there is nothing to hold such finding of the Special Court as erroneous. The argument advanced on behalf of the appellant that he was taken at distance from the bus along with bag should be construed as that it was his search when the shoulder bag on his person was taken charge of and searched by the officers. Again, on the point of search, it is argued that detention of the appellant gives rise to the right of the accused of apprising him as to whether he wanted his search before a Magistrate or a Gazetted Officer. Considering peculiar facts and circumstances of the present case, it must be said there is nothing to have another view than that taken by the Special Court on this aspect of applicability or otherwise of section 50 of the N.D.P.S. Act, 1985. 10. Another argument on behalf of the appellant is 10 that of non compliance of Section 42 inasmuch as according to the appellant said search was conducted in the police vehicle which is a private spot/place and therefore the provisions of Section 42 of the N.D.P.S. Act are attracted. On this aspect, again reasoning given by the Special Court is seen, so also the factual position is ascertained by this Court and by any stretch of imagination it cannot be construed that the search of the shoulder bag of the appellant was taken at private place. It is not the case that the police party entered in private premises and then any narcotic contraband was found. In fact all such ordeal was done on the public open road. Only mear the taking help of a vehicle for facilitating the easy and secure search of the hand bag does not attract the provisions of Section 42 as suggested on behalf of the appellant. 11. Thirdly, it is argued that there is non compliance of Section 55 of the N.D.P.S. Act. Admittedly, compliance of Section 55 is not a mandatory provision but it is made directory. Even, still whether or not there is non-compliance of Section 55 and whether it causes a prejudice to the accused is required to be ascertained. In the present matter, admittedly, the samples were in the custody of the Investigating Officer for one day i.e., till the seizure and drawing of the samples till sending them to 11 the laboratory. The same fact in itself cannot prompt this Court to jump to the conclusion as to tampering of the samples when the reasoning given by the Special Court specifically shows that the samples were sealed and in sealed condition they were received by the laboratory. All the same, considering the provisions of Section 55, not mandatory and considering that for alleged non-compliance of such provisions there was no any prejudice to the appellant, this argument on behalf of the appellant also does not sustain. 12. Nextly, it is argued that the sample packet and bulk contraband were brought before the Court after about two years and this gives rise to a doubt as to whether there was any tampering. Again, on this aspect mere such delay in bringing the sample or the bulk contraband to the court cannot be treated as mitigating circumstance, raising a doubt on the trustworthiness of the case of the prosecution. There are occasions, at a time even the bulk contraband without being brought before the Special Court can be destroyed by the order of a Special Court during the pendency of the trial considering the possible pilferage into the hands of some unscrupulous elements. All the same, argument on this count shall not sustain. 13. Much emphasis has been given, while arguing 12 before this Court on behalf of the appellant that there was nothing brought before the Special Court as to in what manner two packets allegedly containing Heroin powder were weighed as admittedly there was no any bigger weighing scale available on the spot. By pointing out this circumstance, it is strongly argued that it was the aproximation by the N.C.B. Officers saying that each sachet were containing 500 grams of heroin. Bearing in mind, the quantity analyzed showing only 28:28% of pure Heroin in the samples play a significant role. On this aspect, it is argued that if for the sake of argument, the total bulk was considered as 1000 grams, then, considering the purity of the bulk there could be only 280 grams of Heroin in the bulk. However, such 280 grams of heroin can be accepted only there is authentic proof that whatever found with accused no.1 was in fact 1000 grams powder. When there is nothing to ascertain that the bulk contraband was weighing 1000 grams then hardly it can be said that narcotic contraband heroin was more than 250 grams i.e.,beyond the commercial quantity, further argued. On this aspect the shelter of the following authority is taken on behalf of the appellant. A.I.R. 2008 S.C. 1720 E. Micheal Raj vs. Intelligence Officer Narcotic Control Bureau. 13 14. On this aspect, a careful thought is given by this Court and it is to be ascertained that whatever contraband found by the N.C.B., was in two sachets of complan boxes of 500 grams capacity each, was of one kilogram. As per the evidence of P.W.,2 it has come on record that two packets were emptied in one large polythene bag and on weighing the bulk was found 1000 grams weight. Again, on this aspect, it is argued on behalf of the appellant that there is nothing to show as to how much was the weight of polythene bag in which bulk was taken and weighed. Considering such circumstances, in the opinion of this Court though there is no such direct evidence as to what was the weight of the polythene bag, still considering the material as polythene in which entire bulk was collected and weighed, hardly it can be said that the total net weight of the bulk would be much less than about 1 kilogram. In other words, it would be highly improbable to say that the total bulk was of such a less quantity than 1000 grams so as to not have even 250 grams of pure heroin, considering the quantitative analyses as to 28:28% of heroin in the samples. All the same, in the opinion of this Court, this argument on behalf of the appellant also shall not sustain. For all these reasons and considering the 14 substantive evidence brought before the Trial Court, in the opinion of this Court, there is nothing to view the matter differently than that done by the Special Court while convicting the appellant. 15. In the result, Criminal Appeal No. 589 of 2007 is dismissed and disposed of. 16. The impugned judgment and order in N.D.P.S. Special case No. 95 of 2004 passed by the learned Special Judge for N.D.P.S.Cases, Mumbai dated 12th and 13th February,2007 shall sustain. A.R.JOSHI,J.