CR.A/300/1989 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 300 of 1989 With CRIMINAL APPEAL No. 325 of 1989 With CRIMINAL APPEAL No. 956 of 1990 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 ? =================================== MANGALSING BHANSING RAJPUT - Appellant Versus COLECTOR OF CUSTOMS & 1 - Opponent =================================== CR.A/300/1989 2/45 JUDGMENT Appearance : 1. CRIMINAL APPEAL No. 300 of 1989 MR HN JHALA for Appellant. MR HARIN RAWAL, ASST. SOLICITOR GENERAL for Opponent No. 1. MR KT DAVE, APP for State of Gujarat. 2. CRIMINAL APPEAL No. 325 of 1989 MR EE SAIYED for Appellant. MR KT DAVE, APP for State of Gujarat. MR HARIN RAWAL, ASST. SOLICITOR GENERAL for Central Excise Department. 3. CRIMINAL APPEAL No. 956 of 1990 MR HARIN RAWAL, ASST. SOLICITOR GENERAL for Central Excise Department. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 05/03/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. Since all these three appeals are arising out of the same judgment and order of the learned Additional Sessions Judge, Court No. 2, Ahmedabad, all these appeals are heard together and the same are being CR.A/300/1989 3/45 JUDGMENT disposed of by this common judgment and order. 2. Criminal Appeal No. 300 of 1989 is filed by the appellant – original accused No. 3, namely, Mangalsing Bhansing Rajput, Criminal Appeal No. 325 of 1989 is filed by the appellant – original accused No. 2 – Bansi Rupaji Chauhan (Darji) and Criminal Appeal No. 956 of 1990 is filed by the Superintendent, Central Excise (Prevention), Ahmedabad against the very same judgment and order passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 266 of 1987 whereby the appellants – original accused Nos. 3 & 2 in Criminal Appeal Nos. 300 & 325 of 1989 respectively were convicted for an offence punishable under Section 8 (c) read with Section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short 'NDPS Act'). Along with the accused Nos. 2 & 3, original accused No. 1, namely, Bharat Girjashankar Raval was also convicted for an offence punishable under Section 8 (c) & 21 of the NDPS Act and he has preferred Criminal Appeal CR.A/300/1989 4/45 JUDGMENT No.363 of 1989 which was heard and disposed of by this Court by judgment and order dated 05.10.1995 and he was acquitted from the charge levelled against him. While convicting all the three accused under Section 8 (c) read with Section 21 of the NDPS Act, the learned Additional Sessions Judge, Ahmedabad has acquitted all the three accused from the charge of offence punishable under Section 29 of the NDPS Act. Against this acquittal order, the Superintendent, Central Excise (Prevention), Ahmedabad has filed Criminal Appeal No. 956 of 1990. All the three accused were sentenced to undergo R.I. of 10 years and fine of Rs. 1 Lac each and in default thereof, to undergo R.I. of one year more. 3. Briefly stated, the prosecution case as disclosed from the complaint as well as unfolded during the trial, is as under :- 4. One Mr. Abrahusen Sokathusen, Inspector, Central Excise & Customs received an information on CR.A/300/1989 5/45 JUDGMENT 22.09.1987 at about 8.30 p.m. that between 01.00 to 02.00 p.m. on 23.09.1987, one Bharat Raval was to come with about 2 Kgs. of brown sugar to deliver it to one Mr. Bansilal Darji in Flat No. 2/4 of Uma Sut Society, Behind Anjalee Cinema, Vasna, Ahmedabad. On receipt of this information, he called on Mr. N.R. Malek, Inspector of his department and they located from outside the Flat No. 2/4 of Uma Sut Society and also house of Mr. Bharat Raval. He then reduced into writing the said information on coming to the office at Jivabhai Mansion which was known as DRI (Information) Report. On this information being conveyed by the Deputy Collector Shri Bhargav, Central Excise and Customs Authorities kept a watch in company of Panchas on the said flat. During the watch, two persons came on a Scooter which they stopped and parked near the house of Bansi Rupaji Chauhan (Darji). The person driving the scooter wearing the white shirt took out a cloth bag from the front dickey of the scooter and he, in the company of the pillion rider, went inside the house of Bansi Rupaji Chauhan (Darji). One who drove the Scooter CR.A/300/1989 6/45 JUDGMENT is the accused No. 1 and Shri Bansi Rupaji Chauhan (Darji) is accused No. 2. As the accused No. 1 and the pillion rider went inside the flat, the Excise officials in company of Panchas also entered the flat and they saw three persons sitting in a room, two of whom were Scooter driver and the pillion rider. First person was Bansi Rupaji Chauhan (Darji), accused No. 2. On enquiring the names, they disclosed their name and pillion rider disclosed his name as Champaklal. When the Excise and Custom personnels entered the room in the flat, the accused No. 1 was holding cloth bag which contained a card board box. The said card board contained a plastic bag which again contained a cloth bag with some marks which appeared to be of Pakistan / Afghanistan. On opening the same, brown sugar weighing 985 Gms. of the value of Rs.59,100/- was found. The said brown sugar was seized under panchnama prepared in presence of Panchas which was also signed not only by Panchas but also by accused Nos. 1 & 2. CR.A/300/1989 7/45 JUDGMENT 5. Thereafter accused Nos. 1 & 2 were taken to the Central Excise Office and on interrogation, the name of the accused No. 3 i.e. Mangalsing transpired as a person who had delivered the brown sugar for sale to accused No. 2 who in turn gave it to accused No.1. The statements of all the accused were recorded under Section 67 of the NDPS Act wherein they have admitted the possession thereof. Accused No. 3 also admitted during interrogation that he had given the bag to accused No. 2, a week prior to the seizure thereof and he has also visited the house of accused No. 2 some days prior to the seizure to take sale consideration thereof. As accused No. 3 pressed hard for money, accused No. 2 called for the said brown sugar from accused No. 1 and he had gone to the house of accused No. 2. But in view of the fact that the persons had assembled near his flat, he having smelt raid there, returned from there, instead of entering the flat. Accused No. 3 was then contacted and interrogated and he also admitted delivery of the brown sugar to accused No. 2. His statement under Section 67 of the NDPS Act was CR.A/300/1989 8/45 JUDGMENT also recorded. 6. At the time of the seizure of the brownsugar, three samples were drawn from the said substance in presence of the Panchas and accused Nos. 1 & 2. All the three accused were arrested on 24.09.1987 at about 18.00 hours and were produced before the Chief Metropolitan Magistrate on 25.09.1987 at about 11.45 a.m. None of them had complained about any ill-treatment and they were sent to judicial custody till 26.09.1987. On that very day i.e. On 25.09.1987, seized muddamal along with the samples were produced before the Chief Metropolitan Magistrate as required under the Provisions of the NDPS Act and it was also prayed to allow them to send one of the samples to the Forensic Science Laboratory ('FSL' for short), Ahmedabad. The learned Chief Metropolitan Magistrate, Ahmedabad however ordered that the muddamal be kept with the department and permission to send one of the samples to FSL was granted. The Custom and Excise Department having CR.A/300/1989 9/45 JUDGMENT received the statements of the witnesses and on receipt of the report from the FSL as substance being Diacety morphine (heroin) filed a complaint in the Court of Chief Judicial Magistrate at Ahmedabad. The said complaint was registered against all the three accused being Criminal Case No.2374 of 1987 on 13.11.1987. The learned Chief Judicial Magistrate by his order dated 07.12.1987 committed the case to the Sessions Court, Ahmedabad for trial as offence alleged against the accused was exclusively tried by the Sessions Court, Ahmedabad. 7. The learned Additional Sessions Judge, Ahmedabad to whom the case was made over for trial, framed charge against the accused for commission of the offences punishable under Section 8 (c) and 21 read with Section 29 of the NDPS Act which 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. 266 of 1987. CR.A/300/1989 10/45 JUDGMENT 8. To prove the culpability of the accused, prosecution has in all examined as many as 6 witnesses, details of which are as under :- Sr. No. Exh. No. Particulars Page Nos. 01. 42 P.W. 1 – Bhailal Manishankar Bhatt. 119-183 02. 68 P.W. 2 - Rameshchandra N. Kusumgar. 323-349 03. 69 P.W. 3 – Abrahusen Sokathusen. 351-381 04. 60 P.W. 4 – Dhirubhai Ravjibhai Siroya. 383-403 05. 73 P.W. 5 – Rambhav Laxmanrao. 409-413 06. 74 P.W. 6 – Indresh Patubhai Acharya 415–431 9. Prosecution has also produced several documents and relied upon the contents of the same, details of which are as under :- Sr. No. Exh. No. Type of evidence 01. 2 Charge 41-43 CR.A/300/1989 11/45 JUDGMENT Sr. No. Exh. No. Type of evidence 02. 43 Statement of accused No. 1 recorded under Section 67 of the NDPS Act. 203-215 03. 47 Statement of accused No. 2 recorded under Section 67 of the NDPS Act. 237-245 04. 48 Statement of accused No. 3 recorded under Section 67 of the NDPS Act. 247-253 05. 49 Further statement of accused No. 1 255-257 06. 50 Further statement of accusd No. 2. 259-263 07. 51 Further statement of accusd No. 3. 265-269 08. 58 Original complaint. 281-287 09. 77 FSL Report. 441-447 10.After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Ahmedabad explained 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 denied the case of the prosecution by reiterating that they have been falsely implicated in the case. However, they have neither led any CR.A/300/1989 12/45 JUDGMENT evidence nor examined any witness to support their defence. 11.On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Additional Sessions Judge, Ahmedabad has held that the contraband article brownsugar was recovered from the appellants – accused and the prosecution has been able to establish that the complexity of the accused for commission of the offences with which they were charged, has been proved beyond reasonable doubt and, therefore, he recorded the order of conviction and sentence against them to which reference is made in earlier paragraph of this judgment, giving rise to the first two appeals i.e. Criminal Appeal Nos. 300 of 1989 and 325 of 1989 at the instance of original accused Nos. 3 & 2 respectively and against acquittal order from the charge of offence punishable under Section 29 of the NDPS Act, the appeal is preferred by the Superintendent, Central Excise, Ahmedabad being CR.A/300/1989 13/45 JUDGMENT Criminal Appeal No. 956 of 1990. 12.Mr. H.N. Zala, learned advocate appearing for the appellant – orig. accused No. 3 in Criminal Appeal No. 300 of 1989 has submitted that though the papers were taken from him, since it is an old appeal, he relies on the grounds raised by the appellant in the appeal memo. He has neither any instruction nor any information showing the whereabouts of the appellant. He has submitted that the learned Additional Sessions Judge has grievously erred in law in convicting the appellant relying upon his statement recorded under Section 67 of the NDPS Act. The statement of the accused was recorded in Hindi whereas it transpired in evidence of the prosecution witnesses that the appellant is a permanent resident of Barmer in Rajasthan and he is an illiterate person who can only sign his name in Hindi and he does not follow Hindi language fluently. The alleged confessional statement was read over and explained to the accused No. 3 by original CR.A/300/1989 14/45 JUDGMENT accused No. 2 - Bansi Rupaji. This fact was brought out in the evidence of the prosecution witness No. 3 i.e. Inspector Abrahusen Sokathusen at Exh. 69 wherein during the cross-examination, he specifically admitted that the statement of the appellant – accused No. 3 was read over and explained to him by accused No. 2 - Bansi Rupaji. But he did not know in which language, the statement was explained. This fact was further brought out during the recording of the further statement of the appellant – accused No.3 when the Court had to appoint the son of the accused No. 3 as the interpreter to whom the questions were put in Hindi and who in turn explained the questions to the accused No. 3 in Marwadi language. The alleged confessional statement of the accused No. 3 at Exh. 48 wherein at the bottom of the statement, an endorsement is made by the complainant that the statement was read over and explained to him by Bansi Rupaji. He has further submitted that for proving the charge against the accused No. 3, the prosecution has relied upon the statement of accused No. 2 recorded under CR.A/300/1989 15/45 JUDGMENT Section 67 of the NDPS Act to corroborate the statement of the accused No. 3. The said statement of the accused No. 2 was of a co-accused statement and it was specifically retracted. Except for the statement of the accused No. 3 himself, which was also specifically retracted, there was no other evidence to corroborate the said statement. The statement of accused No. 3 was not at all corroborated by any independent evidence and, therefore, conviction of the accused No. 3 was based solely on corroboration of the accused No. 3's own confessional statement which was in the language which he did not follow or understand. The said conviction is, therefore, absolutely illegal and deserves to be quashed and set aside. Mr. Zala has further submitted that the accused No. 3 was wrongly convicted under Section 21 of the NDPS Act in view of the fact that he was acquitted for the offence under Section 29 of the NDPS Act. He has further submitted that Section 29 of the NDPS Act stipulates a criminal conspiracy for the commission of the offence under the NDPS Act. When the CR.A/300/1989 16/45 JUDGMENT charge under Section 29 has failed, the prosecution was obliged to lead evidence to prove beyond reasonable doubt that the accused No. 3 was in possession of the brown sugar. Therefore, the charge having failed under Section 29 of the NDPS Act, the accused could not be convicted under Section 21 of the Act. He has, therefore, submitted that the impugned judgment and order convicting the accused No. 3 under Section 21 of the NDPS Act deserves to be quashed and set aside. 13.Mr. E. E. Saiyed, learned advocate appearing for the accused No. 2 – Bansi Rupaji Chauhan has submitted that the judgment and order of the learned Additional Sessions Judge convicting the accused No. 2 is contrary to the evidence on record and against the settled legal principles. The muddamal articles were not found from the possession of the accused No. 2. The said muddamal was also not found from his house. The learned Additional Sessions Judge has convicted the accused No. 2 only CR.A/300/1989 17/45 JUDGMENT on the basis of the statement recorded by the Superintendent of Central Excise under Section 67 of the NDPS Act. The said statement was not given by the accused No. 2 voluntarily but it was prepared against the will and consent of the accused No. 2. He has further submitted that the said statement was not even ready at the time of its recording. Under Article 20 (3) of the Constitution of India, no statements of the accused are to be used against the accused. When he is the accused of an offence, he shall not be compelled to be a witness against himself. The accused No. 2 was taken in the custody on 23.09.1987 and he was not called by the Custom Officer to take his statement or for examination. He was directly taken from his house and thereafter, he was in the custody of the Custom Officer and the statement recorded on 23.09.1987 and 24.09.1987 were by force and hence, the said statements cannot be used against the accused No. 2. He has further submitted that after recording the statement on 23.09.1987, nothing happened thereafter and yet another statement was recorded on 24.09.1987 only CR.A/300/1989 18/45 JUDGMENT with a view to prove the case of the prosecution and to adduce more evidence. He has further submitted that the Superintendent of the Central Excise and the Customs is the Police Officer and hence, the statement or confession made at the time of arrest is to be excluded from the evidence. Hence, it is to be treated as a statement recorded under Section 25 of the Evidence Act. The prosecution has totally failed to prove the charge against the accused No.2. He has further submitted that the name which was given to Mr. Abraham Husain Shaukathusain, Central Excise Inspector on 22.09.1987 was the name of only Bharat Raval and the informant has said that Bharat Raval was going to Flat No. 2/4 Uma Sut Society, Vasna, Ahmedabad between 01.00 p.m. to 02.00 p.m. The name of accused No. 2 was not at all mentioned by the informant. He has, therefore, submitted that the accused No. 2 was not involved in the business of brown sugar. As per the story of the prosecution, Mr. Bharat Raval has come on 23.09.1987 and he was driving the Scooter and behind him Champaklal was sitting. The said CR.A/300/1989 19/45 JUDGMENT Champaklal's statement was not recorded by the Police and there is no explanation as to why his statement was not recorded. He has further submitted that the said Mr. Champaklal is the main witness in the matter and hence, it was necessary for the prosecution to examine him on oath. When the custom officials have entered in the house, the alleged contraband article was possessed by Shri Bharat Raval, accused No. 1 and hence, the statement of Champaklal is necessary. There was not a single independent witness saying that the contraband article was found from the possession of the accused No. 2. The panchas have not supported the case of the prosecution. Considering the entire facts and circumstances of the case, Mr. Saiyed has strongly urged that no case is proved against the accused No. 2 and hence, he is required to be acquitted from the charge levelled against him. 14.Mr. Harin P. Raval, learned Assistant Solicitor General appearing for the Customs and Central CR.A/300/1989 20/45 JUDGMENT Excise Department and Mr. K. T. Dave, learned Additional Public Prosecutor appearing for State of Gujarat, on the other hand, have submitted that the prosecution has proved its case beyond reasonable doubt and the accused have been rightly convicted under Section 8 (c) read with Section 21 of the NDPS Act. As far as appeal of the Customs and Central Excise is concerned, Mr. Raval has submitted that the prosecution case was that all the three accused had conspired to bring the brown sugar to Ahmedabad and sell it and in pursuance of the said conspiracy, the accused No. 3 had brought brown sugar worth Rs.59,100/- and the accused Nos. 2 & 3 tried to sell it but as they could not get proper customer in time, brown sugar was found with them. The learned Additional Sessions Judge while convicting the accused from the charge of offence under Section 29 of the Act has observed that sub- section (2) of Section 29 specifically clarifies that abetment or participating in criminal conspiracy must be to the commission of any act in a place without and beyond India. Therefore, if a person CR.A/300/1989 21/45 JUDGMENT who is a citizen in India hatches criminal conspiracy to commit an act without and beyond India, is said to have committed criminal conspiracy as contemplated under Section 29 of the NDPS Act. Therefore, the charge of abetment of criminal conspiracy under Section 29 of the NDPS Act did not survive. He has further submitted that the trial Court did not seem to have appreciated Section 29 properly. Section 29(1) refers to Section 116 IPC. Section 116 of IPC provides punishment for abetment of offence punishable with imprisonment. Notwithstanding anything contained in Section 116 IPC, the offence of abetment or conspiracy will be punished with punishment provided for the offence under the Act. Section 29 (1) refers to abetment or conspiracy committed in India. The Legislature wanted to provide punishment when abetment or conspiracy takes place out of India and that provision was made in Section 29 (2). Section 29 (2) provides that a person who, in India, abets or is a party to criminal conspiracy to the commission of an act in a place without and beyond India which would constitute an CR.A/300/1989 22/45 JUDGMENT offence if committed within India, commits an offence. Clause (2) does not restrict the provisions of Clause (1) of Section 29. He has, therefore, submitted that the finding given by the learned Additional Sessions Judge acquitting the accused Nos. 1 to 3 of offence punishable under Section 29 of the Act is neither supported by the facts on record nor by law and hence, it is required to be quashed and set aside. He has, therefore, submitted that the appeal filed by the department is required to be allowed. 15.One of the arguments canvassed by the learned advocates appearing for the accused was that the accused No. 1 was acquitted by this Court vide order dated 05.10.1995 passed in Criminal Appeal No. 363 of 1989 on the ground that mandatory provisions of Section 50 of the NDPS Act were violated. This Court took the view that non-compliance of the mandatory provision of Section 50 of the Act is indeed very serious because of which the accused CR.A/300/1989 23/45 JUDGMENT was required to be acquitted. On the same parity of reasoning, they have submitted that the present appellants – accused Nos. 2 & 3 are also required to be acquitted. 16.While considering this submission, we found that the appeals of the present two appellants could not be taken up along with the appeal of accused No.1 only because they were absconders. Subsequently, the said two appeals came up for hearing before the Division Bench of this Court (Coram :- M. S. Parikh & H.K. Rathod, JJ.). At that time also, the accused Nos. 2 & 3 were absconders. The Court was not inclined to agree with the view expressed by the earlier Bench. It was held in the order dated 29.12.1999 that in the present case, one of the concerned Officers being the Superintendent of Central Excise and Customs, a Gazetted Officer, it would not be necessary to ask the accused as to whether he wanted to be searched in presence of any Gazetted Officer or a Magistrate i.e. to say the requirement of CR.A/300/1989 24/45 JUDGMENT Section 50 of the NDPS Act could not