kbp 1 1411.2003.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1411 OF 2003 Suresh V. Rane Appellant versus The Intelligence Officer, Respondents Directorate of Revenue Intelligence and another Anil G. Lalla i/by M/s.Lalla & Lalla for appellant. Mr.R.F.Lambay, P.P. for Union of India. Mr.J.P.Yagnik, APP for the State. WITH CRIMINAL APPEAL NO.1219 OF 2003 Deepak Rangnath Suryavanshi Appellant versus D.R.I. and another Respondents Mr.Vijay Hiremath for appellant. Mr.R.F.Lambay, P.P. for Union of India. Mr.J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 16.03.2009 DATE OF PRONOUNCING THE JUDGEMENT : 02.05.2009 JUDGEMENT : 1. These appeals can be decided by common judgement as the challenge in these appeals is to the same judgement and order dated 04th July 2003 kbp 2 1411.2003.sxw passed by the learned Special Judge, Narcotics Drugs and Psychotropic Substances, Greater Mumbai. The Criminal Appeal No.1219 of 2003 has been preferred by the original accused no.1 and Criminal Appeal No.1411 of 2003 is preferred by the accused no.2. By the impugned order the accused nos.1 and 2 have been convicted for the offence punishable under section 8(c) punishable with section 23 read with sections 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1989 (hereinafter referred to as "the said Act"). They have been sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1.00 lakh each. In default of payment of fine, they have been sentenced to suffer rigorous imprisonment for six months each. Both the accused nos.1 and 2 have been acquitted of the offence under section 8(c) which is punishable under section 22 read with section 29 of the said Act. 2. It will be necessary to refer to the case of the prosecution. The case is that the officers of Directorate of Revenue Intelligence ("DRI" for short) received an information that a consignment of Mandrax Tablets is being exported to Johansburg. The information received was that the consignment was in the name of M/s.Shyam Ahuja. The consignment was being handled by M/s.Gorden Woodruffs Limited situated at Andheri, Mumbai. Acting on the said intelligence the officers visited the office of M/s.Gorden kbp 3 1411.2003.sxw Woodruffs Limited alongwith panch witnesses. One Mr.Rakesh Gupta who was the Assistant Manager of the said company informed the officers of the DRI that the said company had received documents for export of a consignment to be exported to Johansburg, South Africa in the name of M/s.Shyam Ahuja. He disclosed that the said consignment was brought at about 4.00 p.m. by one Mr.Yogesh. The said Yogesh introduced himself as representative of M/s.Aerosea Cargo, Custom Clearing Agents. According to the said Rakesh Gupta, he informed Yogesh that it was necessary to verify the consignment before issuing the air way bill. The said Yogesh disclosed that the consignment was of imitation jewellery and the person who brought the consignment was with him who was waiting in the office of the said company. The said Rakesh Gupta informed the officers that thereafter no one came for about 15 to 20 minutes. Therefore, he got in touch with M/s.Shyam Ahuja on telephone as the telephone number was appearing on the export documents. He learnt that M/s. Shyam Ahuja had not sent any such consignment for export. Accordingly the said Rakesh informed about the incident to his manager Mr.Rane. It was found that the consignment was containing Mandrax Tablets in plastic bags and there was no imitation jewellery therein. The Tablets were of off-white colour. When the raiding party tested the tablets it gave positive result for Mathequaline. The raiding party found that there were 202 such tablets. kbp 4 1411.2003.sxw Three samples were collected and sealed. The signatures of Mr.Rakesh Gupta and Yogesh Ohol were obtained on the sealed envelopes. After the samples were tested by the chemical anslyser it was confirmed that the tablets contained a psychotropic substance namely Mathequaline. Thereafter a complaint was filed by Mr. S.S. Dhani, Intelligence Officer of D.R.I. against accused no.1 Dipak Suryawanshi, accused no2. Suresh Rane and accused no.3 Yogesh Ohol. The prosecution examined about 19 witnesses and produced various documents in support of the case. 3. The learned counsel appearing for the appellant-accused no.1 in support of Criminal Appeal No.1219 of 003 has taken me through the material part of the evidence. He submitted that the mandatory provisions of the said Act have not been followed. He submitted that the accused no.1 was implicated only on the basis of statements of the co-accused as well as his own statement and there was no corroboration to the said statements. He submitted that the prosecution has not established that the accused no.1 is a party to the conspiracy. He submitted that the investigating agency has not made any efforts to trace out the real culprit Prasad Desai. He pointed out that for the offence under section 8(c) punishable under sections 28 and 29 of the said Act, the charge has been framed only on the incident of 1st July 1999. He pointed out that as far asoffence punishable kbp 5 1411.2003.sxw under sections 22 and 29 read with section 8(c) was concerned, there is already an order of acquittal which has not been challenged. He pointed out that the accused no.1 who has been convicted only for the offence under section 8(c) punishable under section 23 read with sections 28 and 29 of the said Act is charged that he along with other accused between February to 01st July 1999 , attempted to export the said Mandrax tablets which were recovered from export consignment in the name of M/s.Shyam Aahuja Limited. His submission is that there is no evidence to establish the said charge against the first accused. 4. The learned counsel appearing for the second accused in support of Appeal No.1411 of 2003 has also made detailed submissions. Inviting my attention to the evidence on record he submitted that the accused no.2 voluntarily remained present in the office of M/s.Gordon Woofruffs Ltd. and after the consignment was opened by Rakesh Gupta did not attempt to run away from the scene. He submitted that this conduct has not been considered by the learned Special Judge. He submitted that the accused no.2 was arrested nine days after the date on which the raid was conducted. He submitted that even taking the prosecution as it is, the accused no.2 could never have possessed the requisite knowledge about the alleged concealment of contraband by the absconding accused Prasad kbp 6 1411.2003.sxw Desai. His submission is that the officers of D.R.I. had no power to record the statements of the accused under section 67 of the said Act. He submitted that the alleged statements of the accused cannot be read in evidence. He submitted that the statement of the appellant-accused was inculpatory in nature. Both the learned counsel appearing for the appellants have relied upon various judgements of this Court and Apex Court. A reference to which is made at a later stage. 5. The learned counsel appearing for the respondents submitted that there is more than sufficient evidence to show involvement of both the accused nos.1 and 2 in the conspiracy. He submitted that the statements of the accused have been corroborated in material particulars by the evidence on record. He submitted that there is enough evidence on record to show the knowledge on the part of the accused nos.1 and 2. He submitted that no interference is Called for with the impugned judgement and order. 6. With a view to appreciate the submissions it will be necessary to refer to the evidence of prosecution witnesses. The first prosecution witness is Mr.C.S.Satyanarayan-Iyer who was working as an intelligence Officer with D.R.I.. He was examined as according to him he received an intelligence that a consignment of Mandrax tablets is likely to be shipped in name of M/s.Shyam kbp 7 1411.2003.sxw Ahuja to Johansburg. He stated that on receiving the ingelligence he typed the same and placed it before Shri Deherkar on the same day who made an endorsement on the same that the same should be placed before the Deputy Director Mr.Satya Srinivas. He identified the said ingelligence reduced into writing and signatures thereon made by himself, Mr.Deherkar and the Deputy Director. The said intelligence which is reduced into writing is at Exhibit-6. 7. PW-2 is Mr.Abhijeet Deherkar before whom PW-1 had put up the intelligence reduced into writing. The said PW-2 was working as Senior Intelligence Officer who was a gazetted officer. He was examined to prove his signature and note made by him on Exhibit-6. The said witness has no personal knowledge of the intelligence. PW-3 Mr.Satya Srinivas was at the relevant time working as Deputy Director of D.R.I., Mumbai. He was examined to identify his noting and signature on Exhibit-6. The most material witness is Mr.Sukhpalsingh Dhani, PW-4. He deposed that at the relevant time he was working as Investigating Officer attached to D.R.I.. He stated that on 1st July 1999 at about 16 .00 hours the Senior Investigating Officer of D.R.I. Mr.Dabole called him in the cabin of Mr.P.V.George. At that place he was informed about the intelligence received. He was shown the intelligence note. He was instructed to organise the team members and kbp 8 1411.2003.sxw to prepare himself for the raid. He described as to how he left the DRI office alongwith other team members and reached the office of the said company around 17.20 hours. He stated that they had brought two persons to act as Panch witnesses. Thereafter he described what transpired in the office of the said company. In paragraph no.3 of his deposition the witness stated thus:- "... ... Thereafter we the officers and sepoys and also the panchas entered the office of M/s.Gordon Woodruffs and enquired about the incharge of the same. One person by name Shri Rakesh Gupta came and introduced himself as Assistant Manager and we identified ourselves to Shri Rakesh Gupta. We explained to him the purpose of our visit. Rakesh Gupta informed us that he has received the consignment alongwith export documents in the name of M/s.Shyam Ahuja at around 16.00 hrs. Shri Rakesh Gupta informed us that the said consignment was brought to his office alongwith export documents by one person named Yogesh who introduced himself as representative of M/s.Aerosea Cargos Forwarders which is a C.H.A. firm. Mr.Rakesh Gupta further informed that the documents showed the said process and as such he informed Yogesh that he intended to verify the consignment about its contents. Mr.yogesh informed Mr.Rakesh Gupta that as per the export documents the consignment contained imitation jewellery and has been brought by one person who was sitting outside the office. Mr.Rakesh Gupta informed that he told Mr.Yogesh to call the shipper or any of his representative as he intended to verify the consignment. The same was informed by Shri Yogesh to the man sitting outside the office. Shri Rakesh Gupta further informed that no person came forward for about 20 minutes and that he telephoned the office of M/s.Shyam Ahuja on the telephone number mentioned in the export documents. Mr.Rakesh Gupta further informed us that he spoke to one Shri Bharat of M/s.Shyam Ahuja and asked him whether they have kbp 9 1411.2003.sxw sent any consignment for Johansbarg to their office and that they informed that no such consignment was sent. Shri Bharat also told to Mr.Rakesh Gupta to send the export documents by Fax for further confirmation. Shri Rakesh Gupta informed that he told about the same to the branch manager Shri Ramanandan, who told him to verify the consignment before issue of Airway bill and to Fax the relevant documents to Shyam Ahuja. Mr.Rakesh Gupta stated that he accordingly Faxed the documents and thereafter, intended to verify the consignment. Shri Rakesh Gupta further stated that at that time one person by name Shri Rane came to his office and told him that he is the representative of M/s.Aerosea Cargos Forwarders and he has sent to Yogesh alongwith the consignment for issue of Airway bill. Shri Rakesh Gupta further stated that at that time Shri Bharat from M/s.Shyam Ahuja telephoned and informed him that he has received the Fax documents and the same do not pertained to their firm and he is personally coming to the office. Rakesh Gupta then told us that he opened the consignment in the presence of Yogesh and Rane and the consignment was a cardboard carton wrapped with the gunny bag and the gunny bag had the details of the shipper and consigned at Johanesbarg as per the export documents. Rakesh Gupta informed us that on opening the gunny bag and the cardboard cartoon he found polythene bags containing tablets and no such thing as imitation jewellery." 8. Thereafter he described as to how the polythene bags were weighed and lots were made. He stated that four samples in duplicate i.e. eight samples were taken weighing 5 gm each. He stated as to how the samples were packed and sealed. He stated that the packets were signed by the Panch witnesses and others. He deposed that the weight of the bags was found to be 25.200 kgs. and weight of the tablets was found to be 20.160 kgs.. The said witness was extensively cross examined. In the cross examination the witness stated that as there was urgency in the matter of carrying out the kbp 10 1411.2003.sxw raid in view of the intelligence report he did not make any enquiry about the exact location of the office of M/s.Gordon Woodruffs Ltd. He stated that the raiding party proceeded to Sahar Cargo Complex and thereafter they were informed about the address of the said company. The office of the said company was located in Torna Apartment in between Western Express Highway and Sahar Complex. He admitted that when they entered the office they found that the carton was in open condition and the Mandrax tablets were inside the carton. He stated that when Rakesh Gupta showed the carton alongwith some staff members, the accused nos.2 and 3 were present at that time. He stated that when the offer as contemplated by section 50 of the said Act was given to accused nos.2 and 3. He stated that the mandrax tablets were visible. He stated that the consignment was lying in the cabinet of Rakesh Gupta. 9. In the cross examination the said witness stated that the said Rakesh informed him that the accused nos.2 and 3 were the employees of a Clearing Agent. The witness further stated that Rakesh Gupta had informed him that there was another person who had accompanied accused no.3 alongwith the consignment. He admitted that the person who had come with the accused no.3 and the consignment has not been found. The witness admitted that as per Rakesh Gupta's version, when the consignment was to be kbp 11 1411.2003.sxw opened, the said person accompanying the accused no.3 ran away but the accused no.3 himself voluntarily remained there at the time of opening of the consignment. The witness admitted that the accused no.2 also came there when he was called by Mr.Rakesh Gupta. 10. The witness admitted that one Prasad Desai was an important man in the case but he has not been found. He admitted that the person who had come with the consignment with accused no.3 was also a man of Prasad Desai. He candidly admitted that the investigation revealed that the procurement, concealment and packing of contraband in the consignment was carried out by the said Prasad Desai and his persons. He admitted that in February 1998 the said Prasad Desai was summoned to the office of D.R.I. in connection with other case where the contraband was more than 50 kgs. of mandrax tablets. 11. He admitted that after the basic formalities were completed, the second and third accused accompanied the raiding party to the office of D.R.I.. He admitted that after recording their statements, the accused nos.2 and 3 were allowed to go and thereafter the said accused kept on attending the office as and when they were summoned. He admitted that the accused nos.2 and 3 never made any attempt to run away. He, however, denied kbp 12 1411.2003.sxw the suggestion that the accused nos.2 and 3 were falsely implicated in the case. 12. At this stage it must be noted that the Panchanama at Exhibit-10 shows that on personal search of accused nos.2 and 3 nothing incriminating was found in their custody. Before referring to the further part of the evidence it will be necessary to refer to the statements of the accused recorded under section 67 of the said Act. The said statements were subsequently retracted. The accused no.1 Dipak Suryawanshi gave a statement in Hindi. He stated that Prasad Desai as well as accused no.2 Suresh Rane were known to him. He disclosed that the accused no.2 Suresh Rane was employed in office of some clearing agent. He stated that accused no.3 Yogesh was employed with the same agent with whom accused no.2 was working. According to the prosecution, the only incriminating part of the statement of the accused no.1 is that the said Prasad approached the accused no.1 and stated that he wanted to send objectionable material (Galat Maal) to South Africa and the said Prasad Desai sought his help. He offered a sum of Rs.25,000/- to accused no. 1. The accused no.1 stated in his statement that he informed Prasad Desai that the help of accused no.2 Suresh will be required and therefore he will have to be paid some amount. He stated that thereafter he introduced kbp 13 1411.2003.sxw Prasad Desai to accused no.2 Suresh and the accused no.2 Suresh agreed to the work. He stated that Prasad Desai informed that he will bring the consignment alognwith the export documents and invoices and the accused no.1 will have to get the consignment weighed through IATA Agent and obtain air way bill in respect of the consignment. He stated that accordingly the work of Prasad was done. He stated that on 3rd March 1999 after the said Prasad Desai procured the export documents, accused no.2 Suresh was told that Prasad Desai intends to export the imitation jewellery and therefore he desires to make booking through IATA Agent. Prasad required air way bill from the agent. He stated that he informed the accused no.2 Suresh to help him in securing the booking. The said Suresh contacted M/s.Gordon Woofruffs Ltd. on phone. Suresh informed the said company that the export documents alognwith the sanction will be sent with his man Yogesh. Thereafter, the consignment was booked and a copy of air way bill was obtained. He stated that he was not aware as regards the nature of the material in the consignment. However, Prasad had informed him that the consignment contained objectionable material (Galat Maal). 13. It will be also necessary to refer to the statement of accused no.3 Yogesh Ohol. He stated that he was working with M/s.Aerosea Cargo as a peon. Subsequently he was promoted as customs clerk. He stated that accused no.2 kbp 14 1411.2003.sxw Suresh was working as a Manager in the said company. He stated that in the absence of proprietor, the accused no.2 used to give him instructions. He stated that he was personally aware of the clearing procedure and he was in a position to independently carry out the procedure. He stated that accused no.2 informed him that he had received a phone call from Prasad Desai who had a consignment for export. He stated that accused no.2 informed him that the consignment was imitation jewellery (bangles). According to the him, the accused no.2 and Prasad came to him and showed two sets of bangles and stated that such bangles were packed in the consignment. The consignment was weighing about 35 kgs.. He stated that thereafter he met Prasad Desai at the first floor of the cargo complex. At that time accused no.1 Dipak and accused no.2 Suresh were together. He stated that Prasad handed over to him a pouch containing documents and sum of Rs.5,400/- towards air way bill payment. He stated that Prasad Desai informed him that he would forward the consignment to M/s.Gordon Woodruffs Ltd. and he should proceed to the office of the said company. He stated that he reached the said company and met one Mr.Satish who took him to Mr.Rakesh Gupta. He stated that the said Rakesh Gupta saw the papers and called him in the morning of the next day. On the next day a person came from Prasad Desai by an auto rikshaw alongwith the consignment. He stated that the said person was not ready to part with the kbp 15 1411.2003.sxw consignment and therefore he accompanied the said person by the same auto rikshaw for meeting the said Prasad Desai. He stated that at that time the accused nos.1 and 2 were present alongwith Mr.Prasad. Mr.Prasad instructed him to proceed to the office of M/s.Gordon Woofruffs Ltd. and to pay the amount and obtain an air way bill. He stated that the said company refused to issue air way bill. Thereafter Prasad informed him that he would bring the consignment to the said company on the morning of the next day. He stated that in the afternoon of the next day, he went to the cargo complex where Prasad was waiting with the said person who had earlier brought the consignment. Thereafter alongwith the said person by an auto rickshaw he proceeded to the office of M/s.Gordon Woodruffs Ltd. and met Mr.Rakesh Gupta. He entered the office of the company. The person having custody of the consignment was sitting with the consignment in the auto rikshaw. After receiving the payment, Rakesh told him to bring the consignment for verification. Accordingly he informed the person who was sitting with the consignment. The said person went back to bring Mr.Prasad. After few minutes accused no.2 Rane came to the office of the said company. Thereafter he alongwith Rakesh and Rane proceeded towards the godown where weighing machine was placed. By the time the consignment was weighed, he noticed that the man who had brought the consignment had gone away. The consignment was thereafter opened kbp 16 1411.2003.sxw and it was found that it did not contain the imitation jewellery but contained tablets packed in polythene bags. Rakesh Gupta took the consignment to his office and asked him to get the person who had brought the consignment. Thereafter he stated that some officer of D.I.R. came to the office. He thereafter stated in the statement the manner in which personal search was made by the officers. 14. At this stage it will be also necessary to refer to the statement of accused no.2 Suresh Rane recorded under section 67 of the said Act. He stated that he knew the accused no.1 Dipak for six to seven years. He stated that accused no.1 Dipak introduced him to one person by name Prasad. Accused no.1 informed him that Prasad desired to export some consignment containing imitation jewellery to South Africa. Accused no.1 requested him to assist Prasad for obtaining air bill from IATA Agent. Thereafter he stated that he contacted Mr.Satish of M/s.Gordon Woodruffs Ltd. and informed him that he was sending the accused no.1 alongwith his employee Yogesh with the consignment and export documents. Thereafter accused no.1 informed him that he secured the air way bill on payment of necessary charges. Thereafter accused no.1 again approached him and stated that he wanted to send a consignment to South Africa and for sending the consignment he needed the assistance of Yogesh. He stated that the air way bill was kbp 17 1411.2003.sxw procured for sending the said consignment. As far as consignment subject matter of the offence is concerned, he stated that Prasad contacted him on 29th June 1999 in his office and informed him that he was desirous of sending a single consignment to South Africa. Prasad informed him