1 cri-appeal-674-89 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 674 OF 1989 WITH CRIMINAL APPLICATION NO. 1304 OF 1989 The State of Maharashtra (At the instance of Shri Indra Prakash Lal, Assistant Collector of Central Excise and Customs (Head Quarters), Preventive Bombay II Collectorate, 7th Floor, Piramal Chambers, Jijibhoy Lane, Lalbaug, Bombay – 400 012. .. Appellant (Org. Complainant) Vs. 1. Harshad Vaherbhai Patel (Indian Passport No.B-2540721) 4, Sathe Building, as well as 4 Bhaskar Bhavan, Matunga Bombay – 400 019. 2. Vijay Jivram Kothari Gupte Niwas, Flat No.2, IInd Floor, Bhau Daji Road, Matunga, Bombay – 400 019. 3. Parshuram Krishna Kamble Rajan Sheril Bauh (Caster Road) Bandra (West). (Appeal is dismissed against respondent no.3 vide court’s order dated 16/3/1998) .. Respondents (Org. Accused ) 2 cri-appeal-674-89 Mrs. Anuradha Mane for appellant-UOI. Mr. V. G. Pradhan, Senior Advocate with Mr. Jayant Gohil for respondent no.1. Mrs. M. M. Deshmukh, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. MARCH 10, 2011. ORAL JUDGMENT( PER B. H. MARLAPALLE,J.) 1. This appeal filed by the State of Maharashtra through the Assistant Collector of Central Excise and Customs is directed against the order of acquittal passed in Sessions Case No. 1303 of 1988 by the learned Additional Sessions Judge for Greater Mumbai on 2/2/1989. The present respondents came to be tried in the said case for the offences punishable under Section 120-B of IPC read with Sections 20, 23 and 29 of the N. D. P. S. Act, 1985 and Sections 135 (i)(a) and 135 (i)(b) read with Section 135(1)(ii) of the Customs Act, 1962. 2. As per the prosecution case, on 31/7/1987 Shri Prabhakar Karanjekar (PW 6), who was working as the Superintendent of Central 3 cri-appeal-674-89 Excise with his office at Piramal Chambers, Lalbaug, had received an information at about 2.45 p.m. from a known and reliable informant that a huge quantity of Hashish was likely to be transported in a tempo bearing No. MMS-432 from C.S.T. Road, Kurla to Mumbai for export purposes. The informant also had conveyed that the said tempo would be found at a place near Maha Auto Agency on C.S.T. Road at Kurla and that one Ambassador Car would follow and take away the said tempo. On receipt of the said information, Shri Karanjekar followed the due process of law and set out to lay a trap along with other officers like Shri Uttamrao Jadhav – PW 1 and others after obtaining the approval from the Assistant Collector. These officers left from office at about 3.30 p.m. on 31/7/1987 and proceeded towards the destination and when they reached the junction of C.S.T. Road and Agra Road at Kurla at about 3.55 p.m. they stopped their cars near the junction and kept a watch on the movements of the vehicles. After some time, they spotted the tempo bearing No. MMS 432 parked near Maha Auto Agency and it was being followed by an Ambassador Car bearing Registration No. MMH – 1640. They encircled both the vehicles and brought it to the Petrol Pump where the Assistant Collector was waiting and then these two vehicles along with the accused were taken to the office at Lalbaug. They were asked to open the tempo 4 cri-appeal-674-89 and PW 1 noticed that it had 26 cartons and the substance inside each carton had a typical smell and, therefore, they suspected that it was a contraband. From two cartons, samples were drawn and they were found to be slabs of Hashish. All these cartons were unloaded and taken to the 8th Floor Office of Central Excise. Two panchas were called for drawing seizure panchanama. All the 26 cartons were opened and every slab were weighed and samples were drawn. The whole process was completed by about 11 p.m. and during the course of this search and seizure, it was noticed that the registration papers of the tempo were found in the car. The car was driven by accused no.1 – Shri Harshad Patel, whereas the tempo was driven by accused no.3 – Parshuram Kamble. During the course of investigation, accused no.2 was also picked up on the ground that he had conspired the offence to purchase and export the contraband along with accused nos.1 and 3. The statements of all the three accused under Section 108 of the Customs Act were recorded and during the personal search of accused no.1, cash amount of Rs.22,000/- was recovered from him and at the same time, during the personal search of accused no.3, some documents and driving license were recovered from him. The panchanama at Exh. 22 was drawn at about 11 p.m. in the presence of two independent pachas, PW 2 – Shrikant Patil and Shri Vishnu Satam. On 5 cri-appeal-674-89 completion of the investigation, the charge-sheet was filed. 3. During the trial, the prosecution examined in all seven witnesses and PW 7 – Shri Sundersingh Dabola, who was the driver and near relation of accused no.3 turned hostile. Shri Satam was not examined as a witness and in support of the panchanamat at Exh. 22, only PW 2 – Shrikant Patil was examined. He was the only independent witness and the remaining five witnesses were the officers of Central Excise. PW 1 – Uttamrao Jadhav was Inspector, PW 3 - Shri Ramchandra R. Sapre, PW 4 – Karamoottil Philip, PW 5 - Shri Kashinath Joshi and PW 6 – Shri Prabhakar Karanjekar were the Superintendents from Central Excise. The accused claimed that they were innocent and they were roped in the case without any basis or evidence. The prosecution case was in two parts, namely, (a) the physical possession of Hashish by accused nos.1 and 3 on 31/7/1987 and its seizure by the team of the officers led by PW 6 and PW 1 and (b) the conspiracy at the instance of accused no.2 and with the involvement of accused nos.1 and 3. 4. The charge of conspiracy was solely based on the statements recorded under Section 108 of the Customs Act. The trial court noted that 6 cri-appeal-674-89 these statements could not be relied upon for the reasons, namely, (a) that the accused were in illegal detention when the statements were recorded, (b) the statements were recorded under duress and (c) the said statements were retracted at the earliest possible occasion when the accused were presented before the competent court i.e. on 4/8/1987. On the point of illegal detention, the evidence of PW 1 – Uttamrao Jadhav, PW 3 – Ramchandra Sapre, PW 4 – Karamoottil Philip and PW 6 – Shri Prabhakar Karanjekar has been considered by the trial court at length. In their examination-in-chief, PW 1 and PW 6 as well as PW 3 had denied that the accused were in illegal detention from 31/7/1987 till 4/8/1987 when they were produced before the competent court for the first time. However, in their searching cross-examination, they admitted that they had received telegrams as well as letters from the family members of the accused alleging that the accused were kept in illegal detention from the night of 31/7/1987. The trial court, therefore, rightly held that from 31/7/1987 (evening) till the morning of 4/8/1987 all the accused were in illegal detention as they were not produced for remand within 24 hours before the competent court. PW 3 – Ramchandra Sapre admitted that telegram from Mrs.Suresha Patel, the wife of accused no.1, was received and it was stated in the same that on 31/7/1987 her husband was taken in custody in the 7 cri-appeal-674-89 afternoon by the officers of Central Excise and was not produced before the Magistrate. This telegram was received on 2/8/1987. This witness also admitted to have received the second telegram from Mrs. Kothari on 2/8/1987 and it stated that her brother Vijay Kothari was taken away by the Customs Officers at about 9 p.m. on 31/7/1987. 5. When the accused were produced for remand, it was noticed that some of them had injuries on their persons and this was sufficient explanation to support the defence case that the concerned accused was assaulted and forced to make the statements which were recorded under Section 108 of the Customs Act. It was also proved from the evidence that all these statements were retracted when the accused were produced on 4/8/1987 before the competent court i.e. Metropolitan Magistrate. The report at Exh. 72-B submitted by the Chief Medical Officer of the concerned jail was considered by the trial court and was rightly relied upon, despite the opposition by the learned Special P. P. and the trial court, therefore, noted that the statements so recorded were not voluntary statements. For all these reasons, the trial court concluded that the retracted confessions, in the absence of any corroboration by an independent and unreliable witness, could not be relied upon and it did not 8 cri-appeal-674-89 take the prosecution case any further. We are satisfied that the said finding does not suffer from any errors and, therefore, the charge of conspiracy, punishable under Section 120-B of IPC could not be proved against any of the accused. 6. Let us now proceed to consider the search and seizure of the contraband weighing about 824.780 kgs. This was allegedly recovered from the tempo bearing Registration No. MMS-432 and by the team of the Central Excise officers and in the presence of two independent witnesses, namely, PW 2 – Shrikant Patil and Shri Satam, who was not examined. We have perused the depositions of PW 2 – Shrikant Patil. As per him, Satam was his friend and both of them met Shri Shantaram Jadhav in Kamani Engineering Works factory in connection with employment possibilities for PW 2 as he was unemployed. Both of them met Shri Jadhav and while they were returning, they saw a crowd of people near the Maha Auto Petrol Pump. The Central Excise Officers were trying to search for panchas, but nobody was willing and, therefore, PW 2 and his friend Satam showed their willingness to act as panchas. They were shown the cartons in the tempo and were asked to accompany the team of Central Excise Officers to their office in Lalbaug (Piramal Chambers). The tempo as well as the 9 cri-appeal-674-89 Ambassador Car was escorted and were brought to the office of the Central Excise along with the two vehicles used by the officers. All the 26 cartons were unloaded after the officers realized that they contained Hashish and were taken to the 8th Floor Office. Every carton was opened and each slab of Hashish was weighed. This continued for about four hours and PW 2 and his friend were all the time present and they were the witness for the entire operation. The panchanama at Exh. 22 was drawn in their presence and they had signed the same, after having understood the contents therein. The panchanama was drawn in English. PW 2 admitted that he had studied only upto 8th standard and in Marathi. On the total assessment of his evidence, the trial court discarded him as a unreliable witness. In his examination-in-chief, he stated that he wanted to meet Shantaram Jadhav as he was in search of a job and Mr. Jadhav would help him. He also admitted in the cross-examination that he was unemployed as on 31/7/1987. He was confronted with the panchanama at Exh. 22 in which his occupation was shown as service/employment. He had no explanation and proceeded to state that the said writing was not as per his information. He also admitted that he was engaged in the business of selling Vada Pav and was earning about 75 to 100 rupees per day and he used to do that business between 8 p.m. to 12 p.m. He also admitted that Satam was with 10 cri-appeal-674-89 him during the relevant time, for the first and last time. He could not bring Satam to the court despite the fact that he was shown as a witness and PW 2 himself stated that he is neighbour and his friend. In the cross- examination of this witness, the defence counsel brought out sufficient material to point out that Satam was a known criminal and a history-sheeter who was externed on two occasions. In his examination-in-chief, this witness stated that he was present along with the Central Excise officers during the entire search and seizure operation which lasted till 11 p.m. on 31/7/1987 and the panchanama at Exh. 22 was drawn. In his cross- examination, he admitted that on the same day i.e. on 31/7/1987, he was engaged in his business of selling Vada Pav between 8 p.m. to 12 p.m. He also admitted that he was in the company of accused nos.1 and 3 continuously for a period of six hours or more on 31/7/1987. However, when he was called upon to identify accused no.1 in the court, he identified accused no.2 as accused no.1. But, after he re-entered the witness box in the second session, he changed his depositions and claimed that it was a mistake. The defence counsel in the cross-examination of this witness further brought out that in the appearance of accused nos.1 and 2 there was a marked difference in as much as one was of fair complexion whereas the other one was dark. There was marked height difference 11 cri-appeal-674-89 between both of them. One was a baldy man whereas other one had sufficient hair on his head. It was also brought out in the cross- examination that he himself was convicted in a criminal case. We have meticulously gone through the reasons set out by the trial court while discarding PW 2 as a unreliable witness and we do not find any error in the same. 7. Once PW 2 is discarded as a reliable witness for the search and seizure operation, the evidence of the Central Excise officers alone would not meet the requirements of law in as much as the panchanama at Exh. 22 would not inspire confidence. The trial court did not stop here alone and proceeded to examine other attending circumstances. It was claimed by the prosecution that the registration papers of the tempo bearing Registration No. MMS-432 were recovered from the Ambassador Car bearing Registration No. MMH-1640. The prosecution did not take any further steps to locate the real owner of the tempo and the further connection of accused nos.1 and 3 for the same vehicle. It was surely possible for the prosecution to find out as to how the said vehicle (tempo) came in the possession of either accused no.1 or accused no.3 who was driving it and how the registration papers were recovered from the car 12 cri-appeal-674-89 which was driven by accused no.1 at the relevant time. In addition, the evidence of PW 2, PW 3 and PW 6 suffered from contradictions on material points. Their evidence was not consistent. The prosecution also did not care to examine any witness from the Petrol Pump when it was allegedly working at the relevant time. The trial court also noted that PW 2 and his companion Satam were the residents of an area close to the Central Excise office at Lalbaug and it was difficult to believe that he was available at the relevant time near the Petrol Pump as an independent witness, unless he was brought by the Central Excise officers from Lalbaug. So as to connect accused no.1 with the tempo in the incident of 31/7/1987, the prosecution relied upon the evidence of PW 1 alone. He had stated that he had seen accused no.1 and accused no.3 going together in the Ambassador car and thereafter at some stage the accused no.1 handing over the key to accused no.3. However, there was no corroboration to this evidence of PW 1. The credibility of the evidence of PW 1 - Uttamrao Jadhav and PW 6 – Prabhakar Karanjekar was found to be doubtful and in our opinion rightly so. 8. To conclude, we are satisfied that the reasoning set out by the trial court in support of the impugned acquittal order is based on the proper 13 cri-appeal-674-89 appreciation of the evidence adduced by the prosecution in support of its case and it does not call for any reconsideration. The trial court has not committed any error in acquitting the accused. 9. Consequently, this appeal must fail and the same is hereby dismissed. Bail bonds of all the accused stand cancelled. 10. Criminal Application No. 1304 of 1989 does not survive and it stands disposed as such. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)