CR.A/1774/2004 1/77 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1774 of 2004 With CRIMINAL APPEAL No. 1307 of 2006 With CRIMINAL APPEAL No. 2318 of 2006 With CRIMINAL APPEAL No. 620 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ =================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? CR.A/1774/2004 2/77 JUDGMENT =================================== NITIN KHIMJI BHANUSHALI @ RAMBHAI @ R K GAJERA - Appellant Versus STATE OF GUJARAT & 1 - Opponents =================================== Appearance : 1. Criminal Appeal No. 1774 of 2006 MR PM VYAS for Appellant. MR KT DAVE, APP for Respondent No. 1 MR RJ OZA, Special PP for Respondent No. 2. 2. Criminal Appeal No. 1307 of 2006 MR MO BAROD for Appellant. MR KT DAVE, APP for Respondent No. 1. MR RJ OZA, Special PP for Respondent No. 2. 3. Criminal Appeal No. 2318 of 2006 MR PM SHUKLA for Appellant. MR RJ OZA, Special PP for Respondent No. 1. MR KT DAVE, APP for Respondent No. 2. 4. Criminal Appeal No. 620 of 2006 MR RJ OZA, Special PP for Appellant. None for Respondent No. 1. MR KT DAVE, APP for Respondent No. 2. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ CR.A/1774/2004 3/77 JUDGMENT Date : 30/03/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. Since all these four criminal appeals are arising out of the same judgment and order passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 57 of 1999 and since all these four appeals are heard together, the same are being disposed of by this common judgment and order. 2. Criminal Appeal No. 1774 of 2004 is filed by the appellant – original accused No. 1 i.e. NITIN KHIMJI BHANUSHALI @ RAMBHAI @ R K GAJERA. Criminal Appeal No. 1307 of 2006 is filed by the appellant – original accused No. 3 i.e. DAYARAM MANGALDAS NAKHAVA @ BHIKHUBHAI. Criminal Appeal No. 2318 of 2006 is filed by the appellant – original accused No. 2 i.e. NALINKUMAR PRABHUDAS RAICHURA. All these three appellants were convicted for an offence punishable under Section 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) by the CR.A/1774/2004 4/77 JUDGMENT learned Additional Sessions Judge, Rajkot in Sessions Case No. 57 of 1999 vide his judgment and order dated 27.08.2004 and they were sentenced for R.I. of 10 years with fine of Rs.1 Lac and in default thereof, to undergo R.I. for one year. 3. Criminal Appeal No. 620 of 2006 is filed by Shri M.M. Gunsai, Senior Intelligence Officer, Directorate of Revenue Intelligence (for short 'DRI') against the judgment and order dated 27.08.2004 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 57 of 1999 acquitting the respondent – original accused No. 4 i.e. M/s. Omni Engineering Industries Private Limited from the charge of offences levelled against it under the provisions of Section 22, 29 & 38 of the NDPS Act. 4. The brief facts revealed in the complaint as well as unfolded during the course of trial are as under :- CR.A/1774/2004 5/77 JUDGMENT 5. The Officers of DRI, Ahmedabad, Jamnagar and Gandhidham were working on an information which revealed that the person named R. K. Gajara @ Rambhai staying in Room No. 205 of Hotel Savera Palace, Limda Chowk, Rajkot was engaged in manufacture and sale of Mandrex tablets / Methaqualone powder – a prohibited substance under the NDPS Act at one factory somewhere in the outskirt of Rajkot and some tablets/powder are secreted in the said hotel room. Pursuant to the said information, the DRI Officers along with independent Panchas reached the said Hotel and after showing the Search Authorization issued under the NDPS Act to the hotel representative went over to the Room No. 205 on 15.12.1998 at 10.45 a.m. Along with the said Panchas and the Hotel Manager. One person who introduced himself as R. K. Gajara @ Rambhai opened the door when the Officers knocked on the door in the presence of the said Panchas and Hotel Manager. Thereafter, during the search of the said hotel Room, conducted in the presence of the Panchas, the Hotel Manager and the said person R. CR.A/1774/2004 6/77 JUDGMENT K. Gajara, the officers found that the left side drawer of the bedside table contained the following things :- i. A white medium size carry bag in which 50 Nos. of light brown colored tablets of different sizes were found. The said tablets had the letter 'M' or M imprinted on one side and “+” imprinted on the other side. ii. 3 Nos. of light brown colored tablets kept folded in a piece of newspaper. On the one side of the said tablets were the words 'LA CURE' and on the other side 'PARA' imprinted. iii.Another piece of newspaper containing a small plastic bag and a little brown colored powder. iv.A piece of paper in which a few small lumps and pieces of white, light brown or greenish substance. 6. The person who introduced himself as R. K. Gajara on being asked, informed the Officers that the brown colored tablets were Mandrex tablets and the brown powder, Mandrex Powder. As the field testing kit was not available, these tablets could not be CR.A/1774/2004 7/77 JUDGMENT subjected to test for the results immediately at the same place. The said tablets and powder were therefore placed in separate envelopes with labels and were sealed with sealing wax and seal. The labels bore the signatures of the Panchas, the Hotel Manager, the officer and R. K. Gajara. Subsequently, certain rubber stamps of the Companies viz.; Omega Trading Co., Ramson Overseas, found in the drawer of the dressing table in the said hotel Room, were also taken over in sealed envelope after taking their impression on paper. Then, Rs. 12,000/- in cash were found in a plastic bag during the search. The same on being asked by the Officers was informed by the said R. K. Gajara to be connected to the sale proceeds of the Mandrax tablets. Certain documents were also recovered during the search of Room No. 205 of Hotel Savera Palace. The said tablets, cash amount and documents were taken over by the Officers under the provisions of the NDPS Act. CR.A/1774/2004 8/77 JUDGMENT 7. Thereafter, the personal search of the person, who introduced himself as R. K. Gajera was conducted in the presence of Shri Yogendra Garg, Assistant Director, DRI, Ahmedabad, Gazetted Officer. Before the personal search, the Officers gave an option to the said Shri R. K. Gajra to be searched before a Gazetted Officer or before a Magistrate in terms of Section 50 of the NDPS Act and Shri Gajra opted for search before a Gazetted Officer. During the personal search of the said R. K. Gajera, seven light brown colored tablets with markings 'M' on one side and '+' on the other side in a small paper packet were found in left side pocket of his pants. He informed the Officers on inquiry that the said tablets were sample of Mandrax Tablets. The said tablets were then placed in marked and labelled envelope and sealed with sealing wax and seal and were taken over in the presence of the Panchas. Further, from the right side pants pocket Rs.15,000/- in cash were recovered. The same was informed to be connected to the Mandrax tablets by Shri R. K. Gajera on inquiry and hence, the same was also taken over in a CR.A/1774/2004 9/77 JUDGMENT duly marked and labelled and sealed envelope. On persistent inquiries by the officers, the said Mr. R. K. Gajera informed the Officers that his real name was Nitin Khimji Bhanushali and that he was a resident of Mumbai. Then on being asked by the Officers, the said Shri Nitin Khimji Bhanushali voluntarily agreed to accompany the Officers and show the factory where the Mandrax tablets were being manufactured. 8. The Officers along with one of the said two Panchas and Shri Nitin Khimji Bhanushali, the accused No. 1 left the Hotel. As the other Panch expressed his inability to continue as Panch witness due to his ill health, the Officers before leaving the Hotel, informed their standby team of DRI Officers to reach the place specified by accused No. 1 along with one Panch witness and wait nearby the said place, viz. outside the gate of M/s. Omni Engineering Industries Private Limited, 1116, GIDC, Metoda, Tal. Lodhika, Dist. Rajkot. On reaching the said location, the CR.A/1774/2004 10/77 JUDGMENT Officers of both the teams along with two Panchas and accused No. 1 entered the factory premises above and the accused No. 1 led the Officers to the back side of the said factory where Shri Nalinkumar Raichura, the accused No. 2 and Shri Dayaram Mangaldas Nakhwa, the accused No. 3 were found. Their personal search was conducted in the presence of the complainant, namely, M. M. Gunsai who is the Gazetted Officer, as per their option. Three keys in a key chain were recovered from the right side pant pocket of accused No. 2. The same on being asked were informed to be the keys for the locks put on the three rooms having chemical and machinery at the rear side of the factory. The Officers then took over the said keys and opened the said three rooms one by one in the presence of the Panchas and the accused Nos. 1,2 & 3. It was found that room No. 1 contained a tabletting machine, barrels and drums and carboys and some Brown colored powder. The accused Nos. 1 & 2 informed the Officers that the brown colored powder was Methaqualone powder and the chemicals were used for manufacture of the CR.A/1774/2004 11/77 JUDGMENT same. They also told that the Electric Dryer and the tabletting machine were used and were being used for making the Methaqualone powder / tablets. Room 'B' contained certain equipment which were told to be used for making the Methaqualone powder by the accused Nos. 1 & 2 and Room No. C also contained certain chemicals which were also admitted to be used for methaqualone powder by the accused Nos. 1 & 2. The brown colored powder substance found in the room No. 'A' was tested with the Field Testing Kit in the presence of the Panchas and the test resulted positive for Methaqualone. Therefore, samples were drawn from the said brown colored powder substance purported to be methaqualone and the different chemicals found in the said three rooms and were labelled and sealed and were seized under the provisions of the NDPS Act. The said chemicals found in Room 'A' 'B' and 'C' and seized were Acetic Anhydride weighing 482 Kgs., Ortho Toluidine weighing 199 Kgs., PCL-3 weighing 186 Kgs, Anthranilic Acid 98% weighing 414.4 Kgs., Caustic Soda weighing 740.1 Kgs. and CR.A/1774/2004 12/77 JUDGMENT Methanol 2.51 Ltrs. and as informed by the accused No. 1 and 2 that with the said quantities of the aforementioned chemicals, approximately 400 Kgs. of methaqualone can be manufactured. The Mixer unit fitted with electric motor, the glass distilling unit fitted with electric motor, electric starter and electric main switch found in Room No. 'B' and the tabletting machine, Electric Dryer along with 12 trays, vessels for filtration, electric motor starter and electric pump found in Room 'A' were also seized under the provisions of the NDPS Act under cover of Panchnama dated 15/16.12.1998. During the search, the Officers and the Panchas also found that the electric supply to the machinery in the said three rooms had been provided from inside the shop floor of the factory. The quantity of methaqualone seized was 11.5 Kgs. and the estimated market value of the same was Rs. 2.30 Lacs. The value of the other chemicals seized was Rs.3.99 Lacs and the value of machinery and other articles seized was Rs.37.39 Lacs. The total value of the seizure made at M/s. Omni Engineering, the accused No. 4 was Rs.43.68 CR.A/1774/2004 13/77 JUDGMENT Lacs. After the search of the above mentioned three rooms was over, the Officers asked the accused Nos. 1 & 2 in the presence of the Panchas whether the tablets purported to be Mandrax (Methaqualone) tablets recovered from Room No. 205 of Hotel Savera Palace on 15.12.1998 were manufactured in the said place and they answered that the same were manufactured there. Then on being asked by the Officers about the die/die punches used for manufacturing the said tablets, the accused Nos. 1 & 2 told that the same were kept hidden beneath one of the cupboards in the office room of M/s. Omni. Then the accused No. 2 in the presence of the Panchas, Officers and others took out a box containing some die-punches and die bases from beneath one of the cupboards. The markings on the same were examined in the presence of Panchas and the accused and the markings on these die and punches were the same as those found on the tablets recovered from the Room No. 205 occupied by the accused No. 1 during the material time and from the personal possession of the accused No.1. Accused CR.A/1774/2004 14/77 JUDGMENT Nos. 1 & 2 on being asked informed that these die punches had been used for manufacturing of the Mandrax tablets. Also one of the panchas, who was present as Panch during the search of hotel room on 15.12.1998 identified the markings to be matching with the markings on the tablets recovered from the Room No. 205 of Hotel Savera Palace and the pocket of the accused No. 1. Therefore, the said die punches and die base were then sealed and seized under the provisions of the NDPS Act under Panchnama dated 15/16.12.1998. 9. When the Officers asked the accused Nos. 1 & 2 whether any other part of the factory premises of the Company was used for manufacturing Methaqualone powder / tablet and they replied in the presence of the Panchas that one room on the first floor of the office was used for manufacturing one batch of Mandrax Powder. The machinery to manufacture sheet metal parts, raw materials and semi-finished processed materials for the manufacture of the same CR.A/1774/2004 15/77 JUDGMENT were seized under the provisions of the NDPS Act under Panchnama dated 15/16.12.1998. 10.Since during the search of Hotel Room on 15.12.1998, the material recovered could not be tested due to non-availability of the field testing kit, after the search panchnama of the factory was concluded at 14.30 hours on 16.12.1998, the tablets, powder and lumps and pieces of material informed by the accused No. 1 to be Mandrax tablets / powder when recovered from Room No. 205 of Hotel Savera Palace and from the pants pocket of the accused No. 1 and which were kept in the sealed and labelled envelopes, were opened in the presence of Panchas and Shri Nitin Bhanushali and tested with the field testing kit. On testing the tablets, powder and lumps and pieces, the test was found positive for Methaqualone. Hence, samples were drawn from the tablets / lumps and pieces and duly sealed. The remaining quantities were also separately sealed and all the said tablets/powder/lumps and pieces along CR.A/1774/2004 16/77 JUDGMENT with the samples were seized under the provisions of NDPS Act. 11.After seizure of the contraband psychotropic substance, the DRI Officers recorded the statements of the accused and other persons under Section 67 of the NDPS Act and collected further evidence. The samples drawn under Panchnama dated 15.12.1998 for the brown coloured powder purported to be Methaqualone seized from the room A at the rear side of the factory and samples of the chemicals seized from room A and C at the rear side of the factory were sent to Forensic Science Laboratory at Junagadh. The samples of the brown coloured tablets / lumps and pieces and the powder taken over under Panchnama dated 15.12.1998 from Room No. 205 of Hotel Savera Palace and seized under Panchnama dated 16.12.1998 drawn at the factory were sent to FSL at Ahmedabad. The test reports received from the FSL at Junagadh and Ahmedabad confirmed that the samples of brown coloured CR.A/1774/2004 17/77 JUDGMENT powder and the samples of Brown coloured tablets / lumps and pieces / powder mentioned above answered positive for Methaqualone a Psychotropic Substance under the NDPS Act. The samples of the chemicals sent for analysis were identified as Ortho Toludine, Acetic Anhydride, Sodium Hydroxide and Anthranilic Acid. The test report also mentions that Ortho Toludine, Acetic Anhydride and Anthranilic Acid can be used in preparation of Methaqualone. As far as PCL-3, another chemical seized, is concerned it is submitted that it is a Hazardous Chemical. Hence, the sample was not drawn from the said chemical for testing and the name of the chemical was written on side of the barrel containing the said chemical and this fact was also noticed by the Panchas at the time of seizure and accordingly, recorded the Panchnama dated 15/16.12.1998. The complaint was, therefore, filed against all the three accused and the Company for the offences punishable under Section 8 (c) read with Section 22, 28 & 29 of the NDPS Act before the learned Additional Sessions Judge, Rajkot which is registered CR.A/1774/2004 18/77 JUDGMENT as Sessions Case No. 57 of 1999. 12.After filing of the complaint, the learned Additional Sessions Judge, Rajkot framed charge against the accused persons for commission of the offences punishable under Sections 8 (c) read with Sections 22, 29 and 38 of the NDPS Act. The charge was read over and explained to them. As the accused pleaded not guilty to the charge and claimed to be tried, they were put to trial and tried in Sessions Case No. 57 of 1999. 13.To prove the culpability of the accused, the prosecution has examined and relied upon the evidence of nine (9) witnesses, the details of which are given in paragraph 9 of the impugned judgment and order and the same are as under :- Sr. No. Exh. No. Particulars 1 51 P.W No. 1 – Mr. Mayagar Mangar Gunsai, A Sr. Intelligence Officer. 2 135 P.W No. 2 – Mr. Anilkumar Ramprasad Vadhva, A Sr. Intelligence Officer. CR.A/1774/2004 19/77 JUDGMENT Sr. No. Exh. No. Particulars 3 144 P.W No. 3 – Mr. Balkrushna Radhamohan Tivari, An Intelligence Officer. 4 153 P.W No. 4 – Mr. Rameshkumar Jagjivan Thakkar, an Intelligence Officer. 5 161 P.W No. 5 – Mr. Thandilal Ratanlal Mina, An Intelligence Officer. 6 171 P.W No. 6 – Mr. Hitendra Gopaldas Surani, A Panch Witness. 7 175 P.W No. 7 – Mr. Velapulla Purnachandra Rao, Assistant Director, D.R.I. 8 185 P.W No. 8 – Mr. Paren Natvarlal Desai, An Intelligence Officer. 9 198 P.W No. 9 – Mr. Yogendra Ramkumar Garg, Assistant Director, D.R.I. 14.To prove the case against the accused, the prosecution has also produced and relied upon number of documents and contents thereof. The documents are in the form of complaint, panchnama, FSL Report, various reports made to higher-up by the Investigating Officer, Yadi sent to various other authorities, relevance of which for deciding these appeals would be discussed hereinafter in this judgment at the appropriate time. 15.After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions CR.A/1774/2004 20/77 JUDGMENT Judge, Rajkot explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement as required under Section 313 of the Code. In their further statement, the accused persons denied the case of the prosecution in toto. They neither led any evidence nor examined any witnesses to support their defence. 16.On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the learned Additional Sessions Judge, Rajkot has convicted the appellants – original accused Nos. 1, 2 & 3 from the charge of offences punishable under Section 22 read with Section 29 of the NDPS Act and were sentenced for R.I. for 10 years with fine of Rs. 1 Lacs each and in default thereof, to undergo R.I. of one year. The learned Additional Sessions Judge, Rajkot has, however, acquitted the original accused No. 4, the Company, from the charge of offence punishable under Section 8 (c) read with Section 22, CR.A/1774/2004 21/77 JUDGMENT 29 & 38 of the NDPS Act. It is this order which has given rise to this four appeals, first three appeals are filed by the accused Nos. 1 to 3 and fourth appeal is filed by the DRI Officers. 17.Mr. P. M. Vyas, learned advocate appearing for the appellant – original accused No. 1 in Criminal Appeal No. 1774 of 2004 has submitted that the learned Additional Sessions Judge, Rajkot has falsely implicated the accused No.1 in this case and there is no substantive or material evidence appearing against him. The learned Additional Sessions Judge, Rajkot has erred in holding the accused No. 1 guilty in view of the discrepancies between the witnesses' evidence and the circumstances accompanying such evidence. He has further submitted that there is complete breach of Section 42 of the NDPS Act inasmuch as the Officer who received the information was Mr. Wadhera and Mr. Wadhera has merely informed and consulted Mr. Garg who is his immediate superior Officer. This makes it clear that CR.A/1774/2004 22/77 JUDGMENT there is breach of Section 42 (2) of the NDPS Act. Section 42 (2) requires that where an Officer takes down any information in writing under Sub-section (1) or records grounds for his believing under proviso thereto, he shall forthwith send a copy thereof to his immediate superior Officer. Therefore, under Section 42 (2), for the information reduced into writing, a copy of the same is to be forwarded to the immediate superior Officer which has not been done in the present case by the concerned Officer. Therefore, even as per the impugned judgment of the learned Additional Sessions Judge, Rajkot, a copy of the information reduced to writing was not forwarded to the superior Officer. Mr. Vyas has further submitted that there is also clear breach of Section 50 of the NDPS Act inasmuch as before taking personal search, necessary options were not given to the accused No. 1. The learned Additional Sessions Judge, Rajkot has solely relied upon the statements of the accused recorded under Section 67 of the NDPS Act for convicting them for the alleged offences punishable under the provisions of CR.A/1774/2004 23/77 JUDGMENT the NDPS Act. The prosecution is required to prove that the statements recorded under Section 67 of the NDPS Act were made voluntarily and when the prosecution failed to prove that such statements were made voluntarily, relying upon such statements brought on record, the accused could not have been convicted and there was no sufficient and satisfactory evidence on record to hold him guilty for the charges levelled against him. After insertion of Section 53-A on the statute board, the DRI Officers of Custom department or Revenue Officers are considered the Police Officers and Police Officers record the statement of the accused, this statement would be hit by Sections 24 to 27 of Indian Evidence Act. He has further submitted that there is no compliance of the provisions contained in Section 50 of the Act inasmuch as that even if the members of raiding party were the Gazetted Officers, in view of safeguards provided under Section 50 of NDPS Act, personal search of the accused should have been made in presence of an independent Gazetted Officer, who had no concern with the prosecution CR.A/1774/2004 24/77 JUDGMENT and outcome