(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 567 OF 2000 WITH CRIMINAL APPEAL NO.281 OF 2000 WITH CRIMINAL APPEAL NO. 388 OF 2000 (1) CRIMINAL APPEAL NO. 567 OF 2000 Union of India ] at the instance of Assistant ] Director, DRI, Mumbai. ]...Appellant Vs. 1. Gopal Shivdaras Mishra ] ] 2. State of Maharashtra ]..Respondents .... Mr.J.C.Satpute for Appellant/Union of India Mr.Ayaz Khan with Mr.S.S.Bhandrey Advocate for respondent No.1/Accused no.2. Ms.Usha V.Kejeriwal A.P.P. for Respondent no.2. .... WITH (2) CRIMINAL APPEAL NO. 281 OF 2000 Umesh Rangayya Shetty ] Age 32 years, Occ; Business ] R/o 18, B-1, Maniyar Bldg. ] Tardeo, Mumbai-400032 ] At present in Yerawada Central ] Prison, Pune ]..Appellant Vs. 1. The State of Maharashtra] ] 2. S.S.Dhani, ] Intelligence Officer, ] D.R.I.Mumbai. ]..Respondents (-2-) .... Mr.Ramrao Adik with Ms.Rajshree Gadvi Advocate for appellant/accused no.3. Ms.Usha V.Kejeriwal A.P.P. for Respondent no.1 Mr.J.C.Satpute for Respondent no.2 .... WITH (3) CRIMINAL APPEAL NO. 388 OF 2000 Krishnanand Venkappa Shetty ] Hindu, Aged about 35 years, ] permanently residing at Bombay ] and presently undergoing ] sentence at Yerwada Central ] Prison, Pune. ]..Appellant Vs. 1. The Intelligence Officer] Directorate of Revenue ] Intelligence, Hotel ] Woldorf, Colaba ] Bombay-5 ] 2. State of Maharashtra ]..Respondents .... Mr.Peter Lobo Advocate for Appellant/Accused no.1 Mr.J.C.Satpute for Respondent no.1. Ms.Usha V.Kejeriwal A.P.P. for the Respondent no.2. .... CORAM : H.L.GOKHALE AND SMT.V.K.TAHILRAMANI,JJ. DATE : JULY 14/19/20,2004 ORAL JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.) ORAL JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.) ORAL JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.) 1. Through Appeal Nos. 388 of 2000 and 281 of 2000 appellants i.e. original accused nos.1 and 3 have challenged the judgment and order dated 28th (-3-) February, 2000 passed by the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’) for Greater Mumbai. By the said judgment and order, the original accused no.1 Krishna Shetty came to be convicted for the offence under Section 8(c) read with 29 of the NDPS Act, 8(c) read with Sections 22 and 23 of the NDPS Act. Under Section 8(c) read with Section 29, he was sentenced to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- in default further R.I. for three months. Under Section 8(c) read with Sections 22 and 23, he was directed to undergo further R.I. for a period of ten years and to pay a fine of Rs.1,00,000/- i/d further R.I. for three months. The original accused no.3 Umesh Shetty came to be convicted under Section 8(c) read with Section 29 and Section 8(c) read with Section 27(A) of the NDPS Act and he was directed to undergo R.I. for a period of ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine R.I. for a period of three months. 2. By the very same judgment and order, the original accused no.2 Gopal Shivdaras Mishra came to be acquitted of all the charges levelled against him. The Union of India at the instance of the D.R.I. (-4-) original complainant has filed criminal appeal No. 567 of 2000 challenging the order of acquittal in respect of original accused no.2 Gopal Shivdaras Mishra. 3. The original accused nos.1 and 2 were facing trial in NDPS Special Case No. 496 of 1997. As the original accused no.3 Umesh Rangayya Shetty came to be arrested many months later, the case against him came to be numbered as NDPS Case No.224 of 1998. As the accused persons in both the cases i.e. NDPS Special Case Nos. 496 of 1997 and 224 of 1998 were involved in the same offence, both the cases were tried together by the learned Special Judge and a common judgment came to be delivered by the learned Special Judge. As the accused persons were all tried together and they were involved in the same offence, this common judgment is being delivered in respect of Criminal Appeal No. 281 of 2000, 388 of 2000 and 567 of 2000. 4. Criminal Appeal No. 388 of 2000 has been filed by the original accused no.1 Krishna Shetty. Criminal Appeal No. 281 of 2000 has been filed by original accused no.3 Umesh Shetty. Both these appeals have been filed by these accused against (-5-) their conviction and sentence. Criminal Appeal No. 567 of 2000 has been filed by original complainant i.e. DRI authorities against the acquittal of respondent i.e. original accused no.2 Gopal Mishra. For the sake of convenience, we shall refer to all the accused as referred by the trial Court i.e. appellant Krishna Shetty will be referred to as accused no.1. Appellant Umesh Shetty will be referred to as accused no.3 and respondent Gopal Mishra will be referred to as accused no.2. 5. The prosecution case briefly stated is as under: . On 1.7.1997 P.W.1 Shri.Abhijeet Daherkar, Senior Intelligence Officer received a specific intelligence that a consignment of commercial plywoods is to be exported to DIJIBOOTI in Africa by M/s. Divya Impex, Nerul, New Bombay from Mumbai. The said plywood consignment is stuffed into container No.TEXU-325433-2 and is covered by Shipping Bill No.777612 dated 27.6.1997. It is likely that Methaqualone tablets (a psychotropic substance) are kept concealed in the said consignment of commercial plywoods, stuffed in the container No.TEXU-325433-2. Shri. Daherkar noted down the said information and brought it to the notice of his superiors and on (-6-) their direction the C.H.A. (Custom House Agent) was summoned in the office. Pursuant thereto, Shri.Anup Mirdha (P.W.21) of M/s. Pramanik Exim Services attended the D.R.I. office. In presence of two panch witnesses, enquiries were made with Anup Mirdha and he was apprised about the specific information received and request was made to panch witnesses to accompany D.R.I. officers for examination of the said container. Shri.Anup Mirdha produced the documents such as copy of letter of M/s. Divya Impex, Nerul, copies of shipping bill No.777612 dated 27.6.1997, invoice and packing list issued by M/s. Divya Impex and container terminal memo, copy of M/s. James Machintosh & Co a shipping agent etc. 6. The Officers with panchas and Anup Mirdha thereafter, rushed to Sewree Timber Pond (Hereinafter referred to as ‘STP’), shed NO.4. At about 2.00 p.m. on 1.7.1997 they located the container. The said container was identified on the basis of the documents. The said container was opened & from it 8 pallets (bundles) of commercial plywood, each pallet containing 35 sheets were removed. The D.R.I. Officer marked the pallets as A to H and they were dismantled one by one. On dismantling pallet marked "C" the officers after removing the first five sheets (-7-) noticed a cavity upto the depth of 25 sheets. The remaining 5 sheets at the bottom were in intact condition. From this cavity D.R.I. Officers recovered 8 gunny bags which they marked I to VIII and one polythene bag which was marked IX. The gunny bags and polythene bag was opened in which greyish coloured tablets of identical colour and size were noticed. On test with the help of field testing kit, they answered positive for methaqualone. All the samples were marked, signed by panchas, Anup Mirdha and D.R.I. Officers. Shri.Petkar P.W.23, a Gazetted Officer was present while activity of seizure and panchnama of seizure was in progress. After removing samples 134.900 kg. of Mandrax Tablets was put in a Galvanized trunk, which was locked. The lock was wrapped with cloth and D.R.I. seal with identification tag was affixed thereon. The officers in the reasonable belief that the Methaqualone tablets and plywood sheets were being illegally exported out of India, took charge thereof. 7. In the statement of P.W.21 Anup Mirdha employee of M/s. Pramanik Exim Services recorded on 1.7.1997, it was revealed that accused no.1 Krishna Shetty from M/s. Divya Impex handled the documents of the said consignment for custom passing purpose, under the (-8-) garb of export of commercial plywood in factory stuffed Central Excise sealed container. Accused No.1 Krishna Shetty is known to Anup Mirdha being shipping agent and partner in M/s.Ravi Shipping. Based on the documents P.W.21 Anup Mirdha prepared shipping bill and got it out of charge from Custom on 27.6.1997 and he collected bill of lading on 30.6.1997 from M/s.James Mackintosh & Co. (P) Ltd. He handed over the original copies of bill of lading along with customs attested invoice, packing list and G.R. etc. to Krishna Shetty (accused no.1) at his (CHA) office and that Krishna Shetty had personally come to collect the documents. 8. In the night of 1.7.1997 itself, statement of P.W.6 R.B.Singh (Transporter) was recorded. He stated that on the direction of Krishna Shetty (accused no.1) owner of M/s.Ravi Shipping Co., he supplied his truck to lift the container. The empty container was transported from Mulund to Bhivandi for the purpose of loading the container. The address at Bhivandi was given by accused no.1 Krishna Shetty as M/s. Divya Impex, Patel Compound, Opposite-NTC Yarn, near Oswal compound, Purna Village, Bhivandi. On the instructions of P.W.6 R.B.Singh, his driver P.W.28 Premchand Kumbhar and Cleaner P.W.8 Ramashankar (-9-) Jaiswal, lifted the said container from Bhivandi and brought it to STP. The container was off-loaded from the truck at S.T.P. IV and the driver Premchand handed over the documents at the office of accused no.1 Krishna Shetty. 9. Based on the statement of P.W.21 Anup Mirdha, immediately dragnet was spread to search accused no.1 Krishna Shetty. After he was found, summons were issued to him. Thereafter, enquiries were made with accused no.1 Krishna Shetty and his statement (Exhibit-44) came to be recorded on 2.7.1997. In the said statement he has stated about his role in the handling of the Mandrax consignment, floating of M/s. Divya Impex, keeping accused no.2 Gopal Mishra as frontman and taking godown of P.W.14 Tanaji Patil at Bhivandi on monthly rental of Rs.3900/- through broker Kirti Thakker. Accused no.1 in his statement, stated that as Mandrex was to be concealed in the plywood sheets, the plywood had to be cut to make space. Hence, accused no.1 engaged the services of a carpenter from Bhivandi and 50 sheets of plywood were cut from the centre and cavity was created for concealment of prohibited goods. At the time of cutting the plywood sheets for such purpose temporary electric power was supplied by P.W.14 Tanaji Patil (-10-) from his tea shop. On 21.6.1997 the tablets packet wrapped in gunny cloth and plywood sheets were arranged at Bhivandi. Accused no.1 stated that the plywood sheets were kept on the pallet frames and then 8 gunny bags and polythene bag wrapped roll containing Mandrex were placed in the cavity and other 5 full plywood sheets were kept on top ready for strapping and palletisation. These pallets were wrapped with plastic sheets. Thereafter the godown came to be locked. After the statement of Accused no.1 Krishna Shetty was recorded,on the next day i.e. on 3.7.1997, he came to be arrested. 10. The Officers recorded statement of P.W.12 Madhukar Keni Excise Superintendent, P.W.10 Smt.Geeta Krishnan Excise Inspector and P.W.11 Baburao Bhalerao Peon of Central Excise, Kalyan Division, Mumbai. In their respective statements, they have stated that accused no.1 Krishnanand Shetty had attended their office several times and that at his instance the documents of M/s. Divya Impex were scrutinised. The consignment was relating to Export of plywood sheets. The consignment was attended to by them. After packing of consignment in the container, Sepoy P.W.11 Bhalerao put party’s bottle seal No.0356058 on the container. Excise seal was also put. At the time of packing, the represntative of Divya Impex was (-11-) present. P.W.12 Mr. Keni has identified the said representative as accused Krishnanand Shetty. 11. On 2.7.1997 D.R.I. officers visited the said godown belonging to P.W.14 Tanaji Patil. Tanaji Patil informed the officers that the godown belongs to him and he has leased out the godown to one Shetty at Rs.3900/- per month. Tanaji Patil did not have the contact number of Shetty. Officers showed search warrant to Tanaji Patil. In the search of the godown the Officers found 4 lots of plywood sheets which they marked A,B,C and D. However, nothing incriminating was found except that 25 plywood sheets had neatly cut cavity in the centre of the sheets. It was similar to the cuts in the sheet of pallets which was marked "C" in the container and which was seized on 1.7.97 from STP. In the pallet marked ‘C’ in the cavity created by the cut in the centre Mandrex was found concealed. The D.R.I. Officers took charge of the 4 lots of plywood sheets found in the godown under panchnama and kept the same in the godown under seal. P.W.14 Tanaji Patil identified accused no.1 Krishna Shetty to be the same person to whom the godown was leased. Statement of P.W.14 Tanaji Patil was recorded on 2.7.1997. P.W.21 Anup Mirdha and P.W.6 R.B.Singh also identified accused (-12-) no.1 to be the person concerned with the export of plywood through Divya Impex. 12. On 2.7.1997 D.R.I. officers searched the premises of M/s. Ravi Shipping Agency, based on search warrant and collected 18 documents under panchnama. The said seizure took place in the presence of panchas. One of the panch was P.W.19 Vijay Sawant. 13. On the same day i.e. 2.7.1997 the D.R.I. Officer raided the premises at flat no.2, ground floor, building no.C-12, Sector-16, Phase-III, Nerul, Navi Mumbai and search warrant was shown to occupant P.W.31 Shashikant Bhosale. On Shashikant Bhosale being asked about accused no.2 Gopal Mishra, Shashikant informed that the flat belongs to his father Shahaji Bhosale (P.W.32) and that accused no.2 Gopal Mishra was staying with them since last three years as paying guest. He further stated that presently Gopal is not in Mumbai as he has left for his native place in Bihar to attend religious rites of his younger brother who died on 14.5.1997 in a train accident at Kurla, Mumbai. 14. The accused no.2 was not found at any of his (-13-) addresses or at his Nerul address. However, on 21.7.1997 accused no.2 appeared before D.R.I. officers and informed that he had gone to his native place in May, 1997 and hence, he was not available till then. In his statement dated 21.7.1997, accused no.2 Gopal Mishra stated that he stayed with P.W.32 Shahaji Bhosale on payment of Rs.1000/- to Rs.1200/- per month and that he was working with accused no.1 Krishna Shetty, in M/s. Ravi Shipping Agency on monthly salary of Rs.2250/-. He handled export documents along with Krishna Shetty. Accused no.2 Gopal Mishra further stated that Krishna Shetty told him to open one firm in his name which was opened in the name of M/s. Divya Impex, operating from his residential address at Nerul. He also stated that he opened bank account and Krishna got some papers signed by him pertaining to Import Export Code, R.B. Code and other bank formalities. Accused no.2 Gopal Mishra stated that he was not aware about the nature of the documents but he used to sign on the documents brought by accused no.1 Krishna Shetty. He stated that he had also signed blank cheque book and handed over the same to Krishna Shetty. Accused no.2 Gopal Mishra accepted his signature on the Export documents. However, he stated that he does not know other details of invoice/packing list as the same (-14-) were typed by Krishna Shetty, after obtaining his signature on blank forms. Accused no.2 was arrested on 21.7.1997. 15. P.W.8 Ramashankar Jaiswal the cleaner of truck MH-04-C-6138 has stated about his visit to Godown at Poorna village in Bhivandi. He took empty container in his truck to the said godown. The container was loaded with plywood at the godown. He has stated about presence of accused No.1 Krishna Shetty at the godown and handing over export documents by Krishna Shetty to the driver P.W.28 Premchand Kumbhar and this witness. 16. On 3.7.1997 D.R.I. Officers searched flat no.29, 3rd floor, Guruprasad Co.Op. Housing Society, Chembur which was owned by Chandrakant Ambalal Dalal. It was revealed that accused no.1 was residing in this flat after his marriage. Chandrakant Dalal confirmed about Krishna Shetty keeping his belongings and about staying in the said house with his family. In the search the officers seized some documents under panchnama and photograph of marriage reception of Krishna Shetty. 17. The statements of various persons concerning supply of truck, supply of container and supply of (-15-) plywood sheets were recorded. 18. On the basis of address given by Krishna Shetty (accused no.1), the premises of Umesh Shetty (accused no.3) was visited. However, it was found locked. 19. One set of 9 samples of the Mandrax tablets was sent to Dy.Chief Chemist and on chemical analysis the Deputy Chief Chemist, has certified that sample contains methaqualone, a psychotropic substance, covered by section 2(xxiii) of the N.D.P.S.Act. 20. After completion of investigation, complaint against the accused nos.1 and 2 was filed on 29.9.1997. 21. The officers made efforts to contact accused no.3 Umesh, however, he could not be traced. Based on specific intelligence a search warrant was obtained and the premises of accused no.3 Umesh Shetty was searched on 30.4.1998. He came to be found, panchnama of search, seizure was drawn. Accused no.3 Umesh Shetty was brought to the office. His statement was recorded (Exhibit-112). In his statement, accused no.3 Umesh Shetty has stated that his wife had informed him about visits of D.R.I. (-16-) officers and about leaving summons at his residence. But he did not attend on legal advice. He identified the photograph of accused no.1 to be that of Krishna Shetty who is married to his cousin sister Malini and as such, he is his brother-in-law. Accused no.3 Umesh stated that Krishna put up proposal before him to export Mandrax Tablets in export consignment of plywood and requested accused no.3 for finance on interest. Accused no.3 asked accused no.1 about the things to be exported and in June, 1997 Krishna Shetty took him to the godown at Bhivandi where accused no.3 Umesh Shetty saw huge quantity of Plywood and 9 bags i.e. 8 gunny bags, and one polythene bag of Mandrax Tablets. Krishna Shetty (accused no.1) told accused no.3 Umesh that money given by him, has been invested by him in the export consignment. It is the prosecution case that accused no.3 Umesh Shetty thus gave financial assistance to accused no.1. 22. After his statement was recorded, the accused no.3 came to be arrested on the very same day i.e. on 30.4.1998 and remanded to judicial custody. The complaint against accused no.3 Umesh Shetty came to be filed on 27.7.1998. (-17-) 23. The charge (Exhibit-2) was framed against the accused Nos.1 and 2 on 16.4.1998. They pleaded not guilty and claimed to be tried. At that time accused No.3 was not arrested and no complaint against him had been filed. After accused No.3 was arrested and the complaint against him came to be filed, charge (Exhibit-5) was framed against him on 23.9.1998. He pleaded not guilty to the said charge and claimed to be tried. However, later on a common charge (Exhibit-9) came to be framed against all the three accused on 23.9.1998. Vide Exh.9 they were all charged under Sections 29 read with 8(c), 22 and 23 of the N.D.P.S.Act, Section 22 read with 8(c) and 29 of the N.D.P.S.Act, under Sections 28 read with section 23 and 8(c) and 29 of the N.D.P.S.Act. Vide Exhibit-9/A, an additional charge was framed against accused no.3 Umesh Shetty under Section 27-A read with 2 (viii a) (iii) of the N.D.P.S.Act. All the accused pleaded not guilty to the said charges. Their defence is that of total denial and false implication. 24. After considering the evidence led by the prosecution and after considering the submissions made before the learned Special Judge, the learned Special Judge convicted and sentenced the original (-18-) accused nos.1 and 3 as recorded in para no.1 of this judgment. However, accused no.2 Gopal Mishra came to be acquitted of all the charges. Being aggrieved by the said judgment and order, accused no.1 Krishnanad Shetty preferred Criminal Appeal No.388 of 2000 and accused no.3 Umesh Shetty preferred Criminal Appeal No. 281 of 2000. Against the order of acquittal of the accused no.2, the D.R.I. authorities have preferred Criminal Appeal No.567 of 2000. The D.R.I. authorities had also preferred Criminal Appeal No. 566 of 2000 for enhancement of sentence awarded to accused No.3 Umesh Shetty. However, the said appeal came to be dismissed by this Court, by order dated 12.3.2001. 25. During the trial, in all the prosecution has examined 52 witnesses. (i) P.W.1 is Senior Intelligence Officer Mr.Daherkar, P.W.51 Mr.Rana Joint Director and P.W.52 Shri.Dixit Assistant Director, D.R.I.. These witnesses have narrated about the receiving of intelligence and follow up action. (ii) P.W.2 Mr.Sukhpalsingh Dhani is the Investigating Officer and Intelligence Officer of D.R.I.. P.W.3 (-19-) Mr.Vinod Tolani, P.W.43 Mr.Petkar are the Intelligence Officers who state about the activities of search and seizure of the container in which Mandrex was found on 1.7.1997. P.W.43 Mr.Petkar has also deposed relating to the search of premises of accused no.1 Krishnand Shetty on 2.7.1997. P.W.47 Mr.Parmar has also deposed relating to the seizure and recovery of Mandrex tablets. P.W.13 Sopan Gunjal is the panch relating to the said search and seizure. P.W.21 Anup Mirdha is the representative of CHA M/s. Pramanik Exims Services Pvt.Ltd. who was present during the said search and seizure. Accused no.1 Krishnanad Shetty had engaged CHA M/s. Pramanik for exporting the plywood consignment. P.W.49 Pramanik was the employer of P.W.21 Anup Mirdha. (iii) P.W.15 Mr.Murthi, P.W.16 Mr.Devikumar Shetty, and P.W.18 Mr.Yellapurkar are Intelligence Officers who recorded the statements of various witnesses. P.W.17 Prakash Manpuria and P.W.34 Hemant Bankar are examined on the point of acquisition of plywood sheets. (iv) In relation to the renting of godown at Purna village in Bhiwandi by accused No.1 Krishna Shetty, P.W.14 Tanaji Patil, P.W.23 Pravin Thakkar and P.W.27 (-20-) Anil Mhatre have been examined. The other witnesses who deposed about the events at the said godown are P.W.20 Mr.Bharat Vora, P.W.44 Mr.Joseph and P.W.48 Mr.Naik. P.W.10 Inspector of Central Excise Mrs.Geeta Krishnan, P.W.11 Mr.Bhalerao Peon, Central Excise and P.W.12 Superintendent, Central Excise Mr.Keni also visited the godown. They have inspected the plywood sheets in which the bags of Mandrex were found concealed, which were meant for export and issued certificate. (v) P.W.6 Ramraj Singh, P.W.26 Dinesh Singh who is the son of P.W.6 Ramraj Singh, P.W.8 Ramashankar Jaiswal, the cleaner of the truck, P.W.28 Premchand Kumbhar the driver of the truck, P.W.45 Mrs.Kapadia and P.W.7 Najib Kadri have deposed about the supply of truck No.MH-04-C-6138 and container. The consignment of Mandrex concealed in the plywood sheets, was transported from the godown at Bhivandi to STP in the said container and truck. (vi) P.W.38 Umesh Shetty, P.W.41 D’Souza are the panch witnesses relating to the search of the premises of accused no.1 Krishnand Shetty. Both these witnesses have turned hostile. Their evidence is of no use to the prosecution. However, prosecution has examined the Intelligence Officer (-21-) Mr.Krishna Narayan Swami who has deposed on the above aspect. (vii) P.W.25 Salil Anand, P.W. 29 Bhanushali, P.W.30 Pandya, P.W.35 Bodade, P.W.37 Gopale, P.W.46 Suryanarayan have deposed about the previous transaction of supply of containers to accused no.1 Krishna Shetty. (viii) P.W.9 D.R.I.Officer Mr.Milind Gholap visited Kalva Belapur Sahakari Bank Ltd., Nerul branch, wherein the account of Divya Impex was opened and he has searched the premises of accused no.2 Gopal Mishra. P.W.50 Deshmukh is the bank employee in the said bank. (ix) P.W.31 Shashikant Bhosale and P.W.32 Shahaji Bhosale are the witnesses in whose house accused No.2 Gopal Mishra was residing. (x) P.W.33 Surendra Shetty and P.W.36 Amin are the panch witnesses in respect of search of the premises of accused no.3. P.W.3 Mr.Tolani was present at the time of search of house of accused no.3. He also recorded statement of accused no.3. (-22-) (xi) P.W.4 Mr.Gaikwad, P.W.24 Mr.Jadhav and P.W.40 Mr.Dalal are the panch witnesses who have