CR.A/2327/2006 1/92 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 2327 OF 2006 With CRIMINAL APPEAL NO. 343 OF 2007 With CRIMINAL APPEAL NO. 754 OF 2007 With CRIMINAL APPEAL NO. 1235 OF 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ====================================== 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 ? ====================================== IQBAL MOOSA PATEL S/O.MOHAMMED PATEL - Appellant(s) Versus STATE OF GUJARAT & ANR. - Respondent(s) ====================================== Appearance : Criminal Appeal No.2327 of 2006 Mr. E.E. Saiyed for Appellant(s). Mr. R. C. Kodekar, APP for Respondent(s) : 1, Mrs. Vasavdatta Bhatt for Respondent(s) : 2. Criminal Appeal No.343 of 2007 Mr. R. M. Agrawal for Appellant(s). Mr. R. C. Kodekar, APP for Respondent(s). CR.A/2327/2006 2/92 JUDGMENT Criminal Appeal No.754 of 2007 Mr. R. M. Agrawal for Appellant(s). Mrs. Vasavdatta Bhatt for Respondent(s) : 1. Mr. R. C. Kodekar, APP for Respondent(s) : 2. Criminal Appeal No.1235 of 2007 Mr. R. M. Agrawal for Appellant(s). Mr. R. C. Kodekar, APP for Respondent-State of Gujarat. ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 17th March, 2008 & 24th April, 2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) These Criminal Appeals are directed against the judgment and order dated 3rd November, 2006 passed in Sessions Case No. 183 of 2001 by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad, recording the conviction of the appellants-accused for the offences under Section 8(c), read with Sections 21 and 29, of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) for possession and illegal smuggling and trafficking of heroin as a part of the conspiracy. The appellant in Criminal Appeal No. 2327 of 2006 is the original accused No. 1 and has been convicted and sentenced to twelve years of rigorous imprisonment and a fine of Rs. 2 Lakhs, in default to undergo simple imprisonment for two years. The appellant in Criminal Appeal No. 754 of 2007-Hemaram CR.A/2327/2006 3/92 JUDGMENT Chaudhary is the original accused No. 2 and he has been convicted and sentenced to twelve years of rigorous imprisonment and a fine of Rs. 2 Lakhs, in default to undergo simple imprisonment for two years. The appellant in Criminal Appeal No. 343 of 2007 is the original accused No. 3. He has been convicted and sentenced to ten years of rigorous imprisonment and a fine of Rs.1 Lakh, in default, to undergo simple imprisonment for one year and the appellant in Criminal Appeal No. 1235 of 2007 is original accused No. 4 and he has been convicted and sentenced to ten years of rigorous imprisonment and a fine of Rs.1 Lakh, in default to undergo simple imprisonment for one year. 2. The facts of the prosecution case, briefly summarized, are that a conspiracy was hatched for interstate smuggling and trafficking/transportation of narcotic drugs and psychotropic substances (heroin). A secret information was received by Mr. K. C. Chudasma, Inspector, Anti-Terrorist Squad, which he passed on to Mr. Vipul Vijoy, Deputy Inspector General of Police, Anti-Terrorist Squad, Gujarat State, which was ultimately passed on to Mr. P. S. Tomar, Zonal Director, Narcotics Control Bureau, Ahmedabad along with a copy of the information dated 29.06.2001. On the basis of such secret information, it was revealed that accused No. 2 - Hemaram Chaudhary was the kingpin and Derajram Jat - accused No. 3 was the man carrying out the CR.A/2327/2006 4/92 JUDGMENT operations at the instance of accused No.2. It is on the basis of such further information that Truck bearing registration No. RJ-04-G-1305 carrying such contraband articles was returning without delivering the brown sugar at Bharuch, the raid was carried out on 29.06.2001 at around 2:40 p.m. at Lal Bahadur Shastri Bridge, Pirana area in the City of Ahmedabad. The raiding party intercepted the aforesaid truck driven by accused No. 4 - Ashuram Durgaram Choudhary and accused No.3 was accompanying him. Both the persons, who possessed the narcotic drugs, and the truck driver allegedly admitted the crime and also revealed the alleged supplier of the consignment, Mr. Hemaram Choudhary, accused No. 2, and accordingly, accused No.2 was arrested. Therefore, both were detained and from further revelation, it was realised that the consignment could not be delivered to the drug trafficker at Village:Varadia, Tal.& Dist.Bharuch, Gujarat and it was also revealed that he supplied 4 Kgs. of heroin to accused No. 1 at Bharuch in mid- March 2001. 2.1 Thereafter, on the basis of such information and revelation, a further raid was carried out on 7th July, 2001 at Village: Varadia, Khadaki Street, Taluka & District: Bharuch and heroin to the tune of 3.056 kgs. and currency notes of Rs. 1,17,500/- were seized from the residence of accused No. 1-Iqbal Moosa. Accused No. 1-Iqbal Moosa of Bharuch admitted the purchase of four packets of brown sugar from one CR.A/2327/2006 5/92 JUDGMENT Master and Bhaikhanbhai, both residents of Badmer, Rajasthan in the month of March-2001 and out of the four packets of brown sugar, he is alleged to have already sold one packet of brown sugar to one Shakur, a resident of Mauritius, and the remaining three were seized by the NCB officers on 7th July, 2001 in the raid at his residence. Pursuant to such raid and revelation, it was further revealed that it was anticipated that four packets of brown sugar from the same party would be received in June- 2001. One Yusuf Bunglawala, a resident of United Kingdom, is alleged to be the main person of the syndicate and they were receiving narcotic drugs from Pakistan through one Aminbhai @ Hajisaab, a resident of Dubai in India, and part of this stuff, they were sending to Mauritius through crew members of cargo passing Port Louis and other route for such operation was that it was being sent to Bangladesh through land border through the carriers and it was eventually sent to United Kingdom for the ultimate destination and use by Yusuf Bunglawala. 2.2 Therefore, accused No. 1-Iqbal Moosa was also arrested after the raid at his residence at Village: Varadia in Dist. Bharuch with seizure of huge quantity of 3.056 kgs. of heroin and cash of Rs. 1,17,500/-. The statements under Section 67 of the NDPS Act have been recorded, which gave a further clue to the investigation and on the basis CR.A/2327/2006 6/92 JUDGMENT thereof, other accused persons were arrested; their remands were also sought for and a complaint, being NDPS Case No. NCB/AZU/CR.02/2001, was filed before the learned City Sessions Judge, Ahmedabad, which was registered as Sessions Case No. 183 of 2001. 2.3 The charge was framed against the accused persons which was read over and explained to them. The accused persons pleaded not guilty to the charge and they came to be tried. Therefore, all the accused persons were tried by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad in Sessions Case No. 183 of 2001. 2.4 In order to bring home the charges levelled against the accused persons, the prosecution has examined the following eight witnesses: P.W. Name Status Exh. 1 Suraji Manharsinh Jadeja Panch Witness 37 2 Devdatt Nanalal Oza Intelligence Officer, NCB, Ahmedabad 42 3 Jignesh Jaswantbhai Modi Panch Witness 70 4 Mohnish H. Bhalla Intelligence Officer, NCB, Ahmedabad. 81 5 Pavansinh Tomar Zonal Director, NCB, Ahmedabad. 119 6 Mohindersingh Jageram Dahiya Asst. Director, Narcotics, FSL. 130 7 Vipul Vijoy Inspector General, Anti Terrorist Squad, Ahmedabad. 134 8 Krishnakumar Chandrasinh Chudasma Police Inspector, ATS, Ahmedabad. 140 CR.A/2327/2006 7/92 JUDGMENT The prosecution has also produced voluminous documentary evidence with the list at Exh.32, which shall be referred to in this judgement as and when required. 2.5 After recording the evidence of the prosecution witnesses, further statement of the accused persons under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) was recorded. Accused No. 1 has stated, inter alia, that his statement under Section 67 of NDPS Act has been recorded under pressure and he has not been involved in any offence. In most of the answers, he has stated that “he does not know”. Similarly, other accused persons have also in their further statement given the replies that they have been falsely implicated and the statements Section 67 of NDPS Act have been recorded under pressure or duress. 2.6 After further statement under Section 313 of the Code was recorded, the following defence witnesses have been also examined by the defence lawyers for the accused persons: D.W. Name Exh. 1 Jitendra Narottamdas Mandaliya 154 2 Magesh Sadashiv Param 155 3 Moosabhai Adambhai Patel 157 4 Nagjibhai Arjanbhai Desai 164 5 Niranjan Kalidas Varma 167 CR.A/2327/2006 8/92 JUDGMENT D.W. Name Exh. 6 Umesh Jayantkumar Pathak 169 7 Soeb Fidahussain Ujjainwala 174 8 Shankarbhai Kalidas Makwana 182 9 Dr. Sumanlal Bholanath Srimali 187 10 Dr. Jagruti Navalsingh Jadeja 189 11 Namuddiprasan Shankar Narayanam 192 12 Dr. Bhargav Becharbhai Jhaveri 207 13 Hamidaben Iqbal Moosa Patel 209 14 Narpatsinh Kisharsinh Bhati 218 2.7 The learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad, on appreciation and evaluation of the evidence and after hearing the learned advocates for the accused persons as well as the learned Public Prosecutor, passed the impugned judgment and order recording the conviction as stated hereinabove and sentenced the accused persons for the offences alleged and proved against them. 2.8 It is this judgment which has been challenged on the ground mainly that a false case has been made out and accused No. 1 has been falsely implicated. It has also been contended that two agencies have been involved deliberately inasmuch as the Narcotics Control Bureau (NCB) has been involved though the operations were carried out by Anti- Terrorist Squad (ATS) only with a view to see that the statements of the accused persons recorded during the investigations are made admissible under Section 67 of NDPS Act. It has been much emphasised that such CR.A/2327/2006 9/92 JUDGMENT statements have been recorded under pressure, threat and accused No. 1 and accused No. 2 were ill-treated and they were compelled to give such statements and, therefore, the statements recorded under Section-67 of the NDPS Act are not voluntary and therefore, are not admissible and could not have been relied upon. 3. In order to substantiate these contentions, much emphasis has been given with regard to the appreciation of evidence in the form of depositions of Mr. Mohnish Bhalla – (PW-4), Intelligence Officer, NCB, Ahmedabad at Exh.81 and Mr. Pavansinh Tomar – PW-5, Zonal Director, NCB at Exh.119. There are contradictions in their evidence and therefore, the same cannot be relied upon. Further, it has been contended that this evidence is required to be appreciated in light of the evidence or deposition of the defence witnesses. Another facet of the contention raised is that the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with and the entire case, which has been created, is concocted and got-up and for non-compliance of mandatory provisions of the NDPS Act, the entire trial is vitiated. 4. Mr. E.E. Saiyed, learned Advocate for accused No.1, submitted that the two incidents dated 29th June, 2001 and 7th July, 2001 could not have been clubbed together. The entire case of alleged CR.A/2327/2006 10/92 JUDGMENT seizure at the house of accused No.1 - Iqbal Moosa was at Bharuch whereas the narcotic drug/heroin was seized from the truck bearing Registration No. RJ-04-G-1305 at Pirana, Ahmedabad on 29th June, 2001. He, therefore, submitted that both the incidents could not have been clubbed together. It was submitted that it is the case of the prosecution that the secret information was received and on the basis thereof, the truck was intercepted at Pirana, Ahmedabad and the raid was carried out at the house of accused No.1 at Bharuch on 7th July, 2001. It was submitted that it is clear from the production of the report of appellant-accused No.1, that Iqbal Moosa Sagar Patel is the co- accused, whose name was disclosed by accused Nos.3 and 4. Mr. Saiyed, therefore, emphasised that the name disclosed by accused Nos.3 and 4 was that of Iqbal Moosa Sagar Patel and not the name of the present appellant. Mr. Saiyed also submitted that in the further statement of appellant-accused No.1, it has been clearly mentioned by the appellant- accused No.1 that earlier, he was booked at Mumbai in place of Iqbal Moosa Sagar Patel and was acquitted on the ground of identity alone and therefore, in the present appeal also, the same prayer is made. 4.1 Mr. Saiyed submitted that even otherwise the entire case is concocted and got up one as it transpires from the material and evidence produced on record, particularly, depositions of Mr. Bhalla – PW-4 at CR.A/2327/2006 11/92 JUDGMENT Exh.81 and Mr. Tomar- PW-5 at Exh.119. It was submitted that in the telegram, which is at page No.1423 of Paper book No.1, given by Mr. Bhalla to the wife of the appellant-accused No.1, it is mentioned that the appellant is arrested vide panchnama dated 25th June, 2001. Therefore, Mr. Saiyed strenuously submitted that how the reference of the document dated 25th June, 2001 is made in that telegram when the accused themselves were arrested on 29th June, 2001 and thereafter, on the basis of the alleged information revealed, the appellant-accused No.1, Iqbal Moosa, was arrested on 7th July, 2001. Therefore, it was submitted that this would go to show that something is fishy in the prosecution case. Mr. Saiyed also submitted that it is also surprising to notice as to how two different investigating agencies have mixed up two alleged different offences in one case. It was strenuously submitted that it is an admitted position that one alleged incident/seizure has taken place on 29th June, 2001 at Lal Bahadur Shastri Bridge, Pirana, Ahmedabad and another at the house of appellant-accused No.1 at Bharuch on 7th July, 2001. The alleged secret information regarding the first raid was given to the ATS Officer and the information regarding the second raid carried out at the house of the appellant-accused No.1 was given to Mr. Bhalla, Intelligence Officer in the Office of respondent No.2. Therefore, it was strenuously submitted that both the raids are carried out at different places based on different information available with two CR.A/2327/2006 12/92 JUDGMENT different officers and both the cases are clubbed and tried together as Sessions Case No.183 of 2001, which is illegal and contrary to law. 4.2 Mr. Saiyed submitted that the entire case is based on the deposition of three material witnesses, namely, Mr. Bhalla – PW-4, Mr. Tomar - PW-5 and Mr. Chudasma – PW-7. It was submitted that there are material contradictions in the depositions of Mr. Tomar at Exh.119 and Mr. Bhalla at Exh.81. He submitted that when the punishment prescribed for the alleged offences is minimum ten years, then, there should be strict evidence before the Court (probably what is referred to is strict scrutiny of evidence). It was submitted that both are interested witnesses and they are likely to give the evidence in a fruitful manner so that it would ease their work. Therefore, it was submitted that the evidence of two police officers must be supported/corroborated by the evidence of an independent witness. If there is no corroboration from the independent witnesses, then, the evidence of both Mr. Tomar and Mr. Bhalla requires a greater scrutiny. Mr. Saiyed referred to the depositions of Mr. Tomar at Exh.119 and Mr. Bhalla at Exh.81 and submitted that in view of the material contradictions in their evidence on many aspects, their evidence is required to be discarded. For that purpose, Mr. Saiyed has referred to the depositions of both these witnesses in detail and has also reflected in the written submissions in detail in which it has been CR.A/2327/2006 13/92 JUDGMENT inter alia contended that the cross examinations of Mr. Bhalla, Mr. Tomar and Mr. Chudasma require close scrutiny. Mr. Saiyed submitted that Mr. Mohnish Bhalla is a responsible Officer and it is expected of him that he should be fair, just and proper and not arbitrary or fanciful, particularly, when the minimum punishment prescribed under the NDPS Act is ten years. It was submitted that Mr. Bhalla is alleged to have received the secret information and he, being the complainant and member of the raiding party, is an interested witness and therefore, his evidence requires greater scrutiny as well as corroboration from the independent witnesses. Mr. Saiyed also submitted that Mr. Bhalla has stated in his deposition that they sealed the packets in such a way that the muddamal may come out without even disturbing the seal, which is fatal, and therefore, his evidence requires a close scrutiny. It was further submitted that in the cross examination, Mr. Bhalla has remained vague to most of the questions and has replied “may be”, “may not be” and “I do not remember” and therefore, the evidence of Mr. Bhalla is unbelievable. He further submitted that Mr. Bhalla, in his cross examination, has showed his ignorance about the law and in particular, the NDPS Act, which empowers NCB Officers to search and arrest the accused. Moreover, it has been admitted by Mr. Bhalla in the cross examination that he went to file the complaint on 26th September, 2001 and he was not sure that he was to move with the muddamal on 26th CR.A/2327/2006 14/92 JUDGMENT September, 2001. The muddamal is deposited on 19th October, 2001 and there is a vague reply to this aspect as to why there is delay in depositing the muddamal in the Court. Mr. Saiyed strenuously submitted that the reply was that the Nazir of the Court suggested some procedure and when it was specifically asked about the name of the Nazir, he replied that he did not know the name of the Nazir. Further, he has stated that one Rakesh Datania, Police Constable, might have talked to the Nazir. Referring to the deposition of Mr. Tomar, Mr. Saiyed further submitted that his evidence is also doubtful and cryptic and in fact, the learned Additional Sessions Judge has also made observations in the judgement regarding his attitude of not coming out clearly as regards his visit to Mumbai. Mr. Saiyed strenuously submitted that the visit of the witness - Mr. Tomar at Mumbai has not been explained and when he has given vague and evasive reply, it is required to be appreciated in light of the specific case of the defence that accused No.1 – Iqbal Moosa was brought from Mumbai to Bharuch by Mr. Tomar with him in the car and thereafter, a show has been made of raid and seizure at the house of accused No.1 – Iqbal Moosa at Bharuch. For that purpose, he has also emphasised the deposition and the discussion on this aspect in the judgement of the learned Additional Sessions Judge making a note about the same. Mr. Saiyed strenuously submitted that as Mr. Tomar has failed to explain about the main travel from Ahmedabad to Mumbai and vice CR.A/2327/2006 15/92 JUDGMENT versa, it was not expected of him as a senior officer which has also been noted by the learned Additional Sessions Judge and therefore, the evidence of Mr. Tomar does not inspire confidence and it is not reliable or truthful. 4.3 Further, Mr. Saiyed submitted that few important documents, i.e. Exhs. 83 and 86, are signed neither by Mr. Tomar nor by Mr. Bhalla. He also referred to the evidence of defence witnesses and in particular, the deposition of one Shakarbhai Kalidas Makwana, who is examined as DW-8 at Exh.102 and submitted that this witness has admitted that T.A./D.A. bills of Mr. Tomar were lying in the department, which are produced on record at Exh.161. Further, he has categorically mentioned that it is not clear in the bills and nothing has been mentioned about the fare of the tickets and it is also mentioned that the ticket from Mumbai to Bharuch is lost. Further, Mr. Saiyed referring to the deposition of Moosabhai Adambhai Patel, DW-3, at Exh.157, submitted that this witness was discharging duties as an Inspector in the Office of the Income Tax Department and he has stated in his deposition that a hide and seek game was played by the raiding party and therefore, he refused to put his signature in the panchnama on the ground that the same is not drawn in his presence and thereafter, he was allowed to go. Mr. Saiyed, therefore, strenuously submitted that the evidence of Mr. CR.A/2327/2006 16/92 JUDGMENT Tomar, Mr. Bhalla and Mr. Chudasma requires a greater scrutiny and he submitted that their evidence is far from truth and does not inspire confidence and therefore, the learned Additional Sessions Judge ought to have discarded the evidence. 4.4 Mr. Saiyed also submitted that the evidence of Mr. Tomar is also required to be discarded as he has failed to explain before the Court as to why he was in Mumbai and why he had visited Welfare United Trust. Further, his evidence is required to be discarded on the factual aspect regarding his presence at Mumbai and in the morning at Bharuch. Moreover, as it appears from the deposition of Mr. Vipul Vijoy, who is examined as PW-7 at Exh.134, that the record of United Welfare Trust was taken either by him or someone on his behalf and thereafter, the register and documents recovered from the United Family Welfare Trust have not been returned, nor any reply has been given nor it has been produced on record. On this aspect, Mr. Tomar, in his deposition at Exh.119, has not given any specific reply and has avoided the answer on such aspects, which are very relevant. 4.5 Mr. Saiyed submitted that if the depositions of Mr. Tomar and Mr. Bhalla are read together, it would clearly suggests that there are material contradictions on many aspects, namely, when Mr. Tomar CR.A/2327/2006 17/92 JUDGMENT arrived at Sama Hotel and how Mr. Bhalla came to know that he reached Sama Hotel at a particular time. Therefore, Mr. Saiyed submitted that Mr. Tomar is silent in his evidence as to how and when he travelled to Mumbai and Bharuch. 4.6 Mr. Saiyed referred to the panchnama at Exh.86 with regard to seizure of heroin at the house of accused No.1 – Iqbal Moosa and strenuously submitted that the panchnama is got up and cannot be believed or relied upon. For that purpose, he referred to the panchnama and submitted that it is evident that the panchnama was first prepared outside the house of the appellant and the signature was also taken though it is stated that upon knocking the door of the house of the appellant, the appellant was at the door, which would go to show that the appellant was either not in the house or was not present when the panchnama was prepared and therefore, it is got up. 4.7 Mr. Saiyed submitted that even the alleged seizure and recovery of 3.056 kgs. of heroin and Rs.1 Lakh cash found from the conscious possession from the house of accused No.1- Iqbal Moosa, also cannot be believed and is doubtful. It was submitted that in such case, the prosecution has to prove the conscious possession. In the present case, there is nothing on record to show that the appellant was in CR.A/2327/2006 18/92 JUDGMENT conscious possession of the muddamal in question. Mr. Saiyed submitted that the heroin is said to have been found from the cupboard, which was open, and the entire house of the appellant was accessible to all the