1 Appeal-953-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 953 OF 2007 WITH CRIMINAL APPLICATION NO. 501 OF 2011 1. Mr. Siraj Noor Ahmed ) an adult, Indian Inhabitant, ) aged about 38 years, residing at ) Jawahar, Subji Mandi, Tal: Jawar ) Dist. Ratlam, Madhya Pradesh ) 2. Gautamlal Bhuwanji Mina ) an adult, Indian Inhabitant, aged ) about 27 years,residing at Post Kelwas,) Tal:Pratapgarh, Dist. Chittod, ) Rajasthan. ) (Both appellants at present in Judicial ) Custody lodged at Kolhapur central ) Prison, Kolhapur. ).. Appellants (Orig.accused Nos. 1 & 2) Versus The State of Maharashtra ) At the instance of Anti Narcotic Cell ) CB CID, Mumbai ) ini their C.R.No.27/2005. ).. Respondent Ms. Yogini Kadam,Advocate, for the appellants Mrs.G.P.Mulekar,APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 7th October, 2011. JUDGMENT : 1. The original accused Nos. 1 and 2 have preferred this Appeal against 2 Appeal-953-07.sxw the order of conviction and sentence passed by the Special Judge, Mumbai in NDPS Special Case No.77/2005 whereby both the accused were convicted for the offences punishable under Section 21(c) read with Sec. 8(c) and Section 29 read with Sec. 21(c) of the NDPS Act and were sentenced to undergo R.I. for ten years and to pay fine of Rs.1 lakh each and in default to pay fine to undergo simple imprisonment for one year. 2. Prosecution case, in brief, is that PW-6 Mahadev Kumbhar attached to Anti Narcotic Cell (ANC), Cuffe Parade, Mumbai, received information on 16.3.2005 at about 9.30 a.m. that two persons, namely, Siraj Ahmed and Gautamlal Meena would be bringing heroin from one Mannalal of Develdi, Dist Chittod, Rajasthan and would be coming near K.J.Somaiyya Hospital with the said consignment between 15.00 and 15.30 hrs. and would hand over the consignment to one Khansab. PSI Kumbhar immediately reduced that information to writing in the station diary and copies of the same were forwarded to his superiors. The Deputy Commissioner of Police gave direction for arranging the trap under the supervision of Sr. P.I. Shivlal Valvi. Two panch witnesses were called. The members of the raiding party were introduced to them. They were also informed about the information and purpose of the raid as well as about the procedure of search and seizure. Search of the panchas as well as search of the other members of the raiding party was taken in presence of the 3 Appeal-953-07.sxw panchas. No incriminating article was with them. Drug testing kit and other articles needed for the purpose of taking samples and sealing were also collected. About this procedure a the Office of ANC, a pre-trap panchnama was prepared and completed at about 1.15 p.m. 3. Thereafter, the members of the raiding party and the panchas proceeded to and reached near K.J.Somaiyya Hospital. They took position near the Gate No.1 of K.J.Somaiyya Hospital. At about 2.30 p.m., the members of the raiding party noticed two persons coming from the side of Yewral Nagar. One of them was holding a black coloured rexin bag and another was holding green coloured rexin bag. Both came near the Gate No.1 and stopped there. On the basis of the information pertaining description of the persons who were to come there with heroin, PSI Kumbhar, being satisfied that these two persons were same, gave signal to Senior PI Valvi. Then all the members of the raiding party were given signal and they surrounded these two persons. On enquiry, they disclosed their names as Siraj Noor Ahmed and Gautamlal Bhuwanji Meena, who are accused Nos. 1 and 2 before the Court. They were told about the information and the intention to take search of their persons and bags. They were also informed that they had right to be searched in presence of a Magistrate or a Gazetted officer if they so required. However, they declined that offer. First of 4 Appeal-953-07.sxw all, the black coloured rexin bag in possession of accused No.1 was searched by PSI Kumbhar. From that bag, three transparent plastic bags containing brown coloured powder were found. A small quantity of the powder was taken and it tested positively for heroin. Each plastic bag weighed 2 kg. From each bag, two samples of 20 grams each were taken. The samples were separately wrapped labelled, sealed and seized and the remaining brown powder was also seized and sealed in the same manner. Thereafter personal search of accused No.1 was taken and only amount of Rs.250/- was found with him. It was separately seized. 4. After that, PSI Kumbhar took search of the green coloured rexin bag, which was in possession of accused No.2. From that bag also three transparent plastic bags, containing brown coloured powder, were found. A small quantity of that powder was taken and tested. The result was positive for heroin. Each bag weighed 2 kg and from each bag two samples of 20 grams each were taken. Each sample was separately wrapped, labelled, sealed and seized. The remaining powder was also sealed and labelled in the same manner. After its seizure, personal search of accused No.2 was taken and an amount of Rs.200/- and one electricity bill were found. No contraband was found on the person of accused Nos. 1 and 2. The accused persons declined to put their signatures on the labels on the sealed packets. About this complete procedure, a panchnama was drawn 5 Appeal-953-07.sxw and it was completed at 5.20 p.m. Copies of the panchnama were supplied to each of the accused Nos. 1 and 2 and they also signed below the original panchnamas in acknowledgment of receipt of the copies of the panchnamas. After completing the procedure, the members of the raiding party returned to the ANC Office. 5. PW-2 API Prasad Pandhare, who was one of the members of the raiding party and an eye-witness of the whole procedure, lodged FIR, on the basis of which Crime No.27/2005 was registered by PSI Kumbhar. The seized articles were deposited with the Storekeeper immediately and a special report about this raid, search and seizure was submitted to the superior officers. On 17.3.2005, PW-1 Head Constable Bhagwat Kanase collected the samples from the Storekeepr and on the same day, he deposited the said samples in the Office of Chemical Analyser. The report of the C.A. confirmed that samples contained heroin. After investigation, charge-sheet came to be field against both the accused. 6. Both the accused pleaded not guilty to the charges levelled against them. According to them, they were falsely implicated. On behalf of prosecution, in all seven witnesses were examined and several documents were also placed on record. The learned Special Judge, after hearing the parties, convicted and 6 Appeal-953-07.sxw sentenced the accused persons as stated above. 7. Heard the learned Counsel for the parties and perused the record and proceedings as well as the properties. 8. The learned Counsel for the accused vehemently contended that the procedure laid down in Section 42(1), Sections 50 and 57 of the NDPS Act was not strictly followed and on that ground itself the prosecution case must fail. It is also contended that the samples were not properly sealed and there was possibility of tampering the same. It is also contended that as per the information the consignments of heroin were brought from one Mannalal and the consignments were to be handed over to one Khansab, but the prosecution has failed to arrest any of them. It is contended that as the main culprits are not arrested and produced before the Court, the case against the present accused persons becomes doubtful. 9. On the other hand, learned APP strongly supported the impugned judgment and order of conviction and sentence. According to her, merely because said Mannalal and Khansab could not be arrested, the case against the present appellants does not become weak. If Khansab, who was the consignee, did not 7 Appeal-953-07.sxw turn up, the case against the persons who had actually brought the heroin and who were found in possession of the same does ot become doubtful. They are liable to be convicted for the offences under Sections 20(c) read with Sec.8 and 29 of the NDPS Act. The learned APP also contended that all the mandatory provisions of law were strictly followed. She also contended that the provisions of Sec. 42 and Sec.50 of NDPS Act are not applicable to the present case because no such search and seizure had taken place in any building, conveyance or enclosed premises. The accused persons had come at the public place near Gate No.1 of J.J.Somaiyya Hospital and were apprehended at that place. Secondly, no contraband was found in their personal search. The contraband were found in the bags which were in their possession. The learned APP also contended that the seals of the muddemal property was immediately deposited with the Storekeeper and next morning samples were also forwarded and deposited in the office of C.A. The C.A. had received the samples with the intact seals and thus there no possibility of tampering with the seals. 10. Out of seven witnesses examined by the prosecution, PW-2 API Prasad Pandhare, PW-4 Senior Police Inspector Valvi and PW-6 PSI Mahadev Kumbhar were the police officers and each of them claims to be eye-witness of the whole procedure. PW-3 Anil More was the panch witness and he was also 8 Appeal-953-07.sxw witness of the whole proceeding, including the pre-trap panchnama as well as the search and seizure followed by the panchnana. Evidence of PW-6 PSI Kumbhar reveals that on 16.3.2005, he received information that one Siraj Ahmed aged 32 years with 5’7” height and wheatish complexion and one Gautam Lal Meena aged about 25 years, slim, blackish complexion and height of 5’5” had brought heroin from one Mannalal of Develdi, District Chittod, Rajasthan and would be coming near K.J.Somaiyya Hospital between 15.00 and 15.30 hrs. for selling the same to one Khansab. This information was reduced to writing in the station diary and the copies of the same were immediately forwarded to the Senior Police Inspector, Assistant Commissioner of Police and the Deputy Commissioner of Police for information. Exhibit 30 is a copy of that station diary entry. The DCP directed to conduct raid under the supervision of PW-4 Senior PI Shivlal Walvi. PSI Kumbhar deposed that he also apprised Inspector Valvi about the information and thereafter Inspector Valvi called PSI Prasad Pandhare, PSI Pol, Head Constable Kanase, some other constables and staff and informed them about the information. PW-1 H.C. Bhagwat Kanase, was asked to call two panch witnesses and accordingly he came along with two panch witnesses, including PW-3 Anil More. PSI Kumbhar gave a letter Exhibit 31 to the Senior Inspector – Administration for supplying testing kit, office seal, weighing scale and sealing and labeling material. All these articles were made available to him. When the panchas came there, they 9 Appeal-953-07.sxw were also informed about the purpose of the raid as well as the procedure. Thereafter, personal search of the panchas was taken. There was no incriminating article with them. Then personal search of the police staff who were members of the raiding party, was also taken in presence of the panch witnesses and there was no incriminating articles with them. About all this procedure, a pre-trap panchnama Exhibit 17was prepared in the A.N.C. office. This panchnama was completed by 13.15 hrs. and was signed by PSI Kumbhar and both the panch witnesses. 11. As per the evidence of PW-6 PSI Kumbhar, the members of the raiding party reached near K.J.Somaiyya Hospital at about 2.30 p.m. and they parked their vehicle at some distance. The team was divided into two groups and they took position. At about 3.20 p.m. , PSI Kumbhar noticed two persons coming from the direction of Yewral Nagar. One of them was holding black coloured rexin bag and another was holding green coloured rexin bag. As their identity matched with the identity of the suspected persons who were to come, PSI Kumbhar gave signal to PI Valvi and he in turn gave signal to the members of the raiding party and they surrounded those two persons carrying bags. The accused Nos. 1 and 2 are identified as those two persons. As per his evidence, they were told about the information received and their intention to take search of their bags 10 Appeal-953-07.sxw and persons. On enquiry, they disclosed their names and addresses. PI Valvi informed each of the accused persons that they had right to be searched in presence of a Magistrate or a gazetted officer if they so desired. However, they declined that offer. Thereafter, the black coloured rexin bag in possession of accused No.1 Siraj was searched. From that bag, three plastic bags each containing 2 kg. brown powder were found. A small quantity of powder was taken from the bag and it tested positive for heroin. Thereafter, from each of the 3 bags, two samples of 20 gram each were taken. Each sample was put in a plastic sachet and was stapled. Each sample packet was then put in a separate brown envelope which was duly closed, labelled and sealed. The envelopes were separately marked A-1, A-2, B-1, B-2, C-1 and C-2. The plastic bags, containing remaining one kg. 960 gram powder each, were also stapled and wrapped separately in brown papers and labels with signatures of panchas and PSI Kumbhar were affixed on them. These bags were also duly tied with thread separately and sealed and were marked as A, B and C. The black coloured rexin bag was kept in brown paper and packed. It was also duly labelled and sealed and marked D. After this seizure, personal search of accused NO.1 was taken but no contraband was found. Only cash of Rs.250/- was found with him. It was also seized. 11 Appeal-953-07.sxw 12. Thereafter, as per the evidence of PW-6 PSI Kumbhar, the green coloured rexin bag in possession of accused No.2 Gautamlal Meena was searched and from that bag also three plastic transparent bags containing brown powder were found. A small quantity of powder was taken from one of the bags. It tested positive for heroin. Thereafter from each bag, two samples of 20 grams each were taken. TheA similar procedure, as was followed in respect of seizure from accused No.1 Siraj Ahmed, was followed in this case also. The samples were duly sealed and marked E-1, E-2, F-1, F-2, G-1 and G-2 and the green coloured rexin bag was separately packed and sealed and was marked J. After search and seizure of the heroin, personal search of accused No.2 was taken. No contraband was found from his person. Only cash of Rs.200/- and one electricity bill were found. These articles were also seized. About this complete procedure, a panchnama Exhibit 17A was prepared. It was signed by PSI Kumbhar and both panch witnesses. Copy of the panchnama was given to each of the accused persons and they o signed the original panchnama in acknowledgment of receipt of the same. 13. PW-2 PSI Prasad Pandhare, PW-4 P.I. Shivlal Valvi and panch witness PW-3 Anil More fully supported the evidence of PSI Kumbhar in respect of the pre-trap as well as post-trap panchnama and the complete procedure followed in this case. PW-2 Prasad Pandhare, who was a member of the raiding 12 Appeal-953-07.sxw party and an eye-witness of the whole incident, lodged the FIR Exhibit 15, on the basis of which offence came to be registered by PSI Kumbhar. The offence appears to have been registered at 17.45 hours on 16.3.2005. 14. Evidence of PW-6 PSI Kumbhar, PW-4 Shivlal Valvi and PW-7 ASI Aminuddin Sayed, who was Storekeeper, reveals that on 16.3.2005 itself PSI Kumbhar deposited the property, which was seized by him in the store room as per the letter Ex.32. The letter was endorsed by PI Valvi directing the storekeeper to get the property deposited and PSI Aminuddin Sayed accordingly accepted the property, except the cash which was returned to be deposited with the head office. It shows that all the packets, including the samples were deposited in the store room on the same day in sealed condition. Evidence also shows that on 17.3.2005 PSI Kumbhar addressed a letter Exhibit 24 to the Sr. Police Inspector – Administration to hand over the samples marked A-1, B-1, C-1, E-1, F-1 and G-1 to Police Head Constable Kanase (PW-1) for taking the same to C.A. On this letter, the Senior Police Inspector endorsed and directed the storekeeper to hand over the samples to the said Head Constable. The evidence of this witness and the endorsement on the letter Exhibit 24 show that on 17.3.2005, these six samples were handed over to PW-1 Head Constable Bhagwat Kanase in sealed condition. PW-6 Mahadev Kumbhar also deposed that he prepared the covering letter 13 Appeal-953-07.sxw addressed to the C.A. for the purpose of analysis of these samples. The specimen of the seal used for sealing the samples was affixed on the letter. PW-1 Head Constable Kanase deposed that he had received these samples with intact seals on 17.3.2005 at 10.45 a.m. and on the same day, he deposited the property in the office of C.A. Exhibit 35 is the extract of the Property Register, which also goes to support his oral evidence about depositing of the property and handing over of the samples to PW-1 Kanase for depositing the same in the C.A. Office 15. Exhibit 25 is the C.A. Report, which shows that those sealed parcels, seal intact and as per copy sent were received in the office on 17.3.2005 through Head Constable No.324. PW-5 Sanjay Prabhawale was the Assistant Chemical analyser. He was also examined to prove the results of the C.A. He also gave evidence in detail about analysis and data and deposed that in each of the samples heroin i.e. Diacetyl Morphine along with other Opium Alkaloids was detected. Thus, the C.A. Report Exhibit 25 has been proved by him by giving evidence before the Court also. His evidence as well as the C.A. Report shows percentage of heroin in the said samples. Even though this witness was cross- examined at length, he could not be shattered and therefore it must be held that the samples contained heroin. Minimum percentage of Diacetyl Morphiine was 30.43% in one sample while maximum was 35.35% in one sample. Diacetyl 14 Appeal-953-07.sxw Morphine in remaining four samples was between this range. 16. On behalf of the accused, it is contended that Mannalal, who had allegedly sent these consignments and Khansab who was to receive the consignment were never found. It is true that they could not be traced and arrested but merely because the consignee did not turn up and could not be arrested, the offence committed by the present accused persons does not get mitigated nor they can be held to be innocent. In the present case, both the accused persons had come together with one bag each in their hands and from each bag three plastic bags, were found. Each plastic bag contained 2 kg. Brown powder which is proved to be heroin. This indicates that they had entered into conspiracy and as a result of the same, they had brought the consignments to deliver the same to a person namely Khansab but as Khansab did not turn up. May may be that he might have noticed presence of police party and therefore might have escaped and therefore his presence could not be noticed in that area. Merely because Khansab did not turn up the accused persons who were found in possession of heroin cannot be given benefit of doubt. It is not their case that they were having any licence, permit or authorization for the same. Therefore, it must be held that they had committed offence under Section 8(c) read with Sec.21 of NDPS Act. 15 Appeal-953-07.sxw 17. Next objection taken by the learned Counsel for the accused/appellants is that the provisions of Sections 42 and 50 were not complied. PW-6 PSI Kumbhar has deposed that he had received the information and taken down that information immediately in the station diary. He gave copy of the said report to his immediate superior PW-4 Shivlal Valvi, who was then Senior Police Inspector in the Department. He endorsed it and the report was also placed before the Assistant Commissioner of Police and Deputy Commissioner of Police. Exhibit 30 is the copy of the entry taken in the station diary on 16.3.2005 at 10.20 hrs. and it shows that this information was placed before the Senior Police Inspector , Assistant Commissioner of Police and Deputy Commissioner of Police, ANC immediately. The learned Counsel for the appellants contended that original station diary does not appear to have been produced. It is true that the record does not reveal that the original station diary was produced before the Court, but at the same time, there is nothing to show that any objection was taken to exhibit the photocopy of that entry in the station diary. Evidence on record also shows that PSI Kumbhar submitted a written letter Exhibit 31 to the Senior Police Inspector – Administration requesting to make available the official seal and other material for the purpose of seizure, sealing etc. in that letter. It is specifically mentioned that at 10 a.m. he had received the information that two persons, namely, Siraj Ahmed 16 Appeal-953-07.sxw and Gautam Lal Meena were expected to come with heroin and for that purpose, raid was to be conducted. This evidence also provides corroboration to the testimony of PW-4 Valvi and PW-6 Kumbhar. 18. The evidence of PW-6 Kumbhar, PW-2 Prasad Pandhare and PW-4 Shivlal Valvi goes to show that each of the accused persons were informed about their right to be search in presence of a Magistrate or a gazetted officer and this fact was also mentioned in the panchnama. It is true that PW-4 Shivlal Valvi deposed that he had informed the accused persons that if they desired, their search could be taken in presence of a Magistrate or a gazetted officer and they declined. PI Valvi did not speak about informing accused about their right to be searched in presence of a Magistrate or a gazetted officer. However, PW-2 Prasad Pandhare and PW-6 Kumbhar specifically deposed that each of the accused were independently informed that they had the right to be searched before a Magistrate or a gazetted officer if they so desired and they declined. The panchnama also corroborates their version. PW-3 Anil More. the panch witness, deposed that the accused were told that if they wanted their search could be taken in presence of a Magistrate or a gazetted officer. Thus two witnesses, PW-2 Prasad Pandhare and PW-6 Kumbhar had deposed that the accused persons were informed about their right to be searched in presence of a Magistrate or a gazetted officer and they 17 Appeal-953-07.sxw declined while PW-3 Anil More and PW-4 PI Shivlal Valvi deposed that they were informed that if they desired their search could be taken in presence of a Magistrate or a gazetted officer. The evidence of Prasad Pandhare and Mahadev Kumbhar is consistent with the contents of the panchnama and therefore it must be held that the accused were duly informed about their right and the provisions of Section 50 were fully complied. 19. The learned APP vehemently contended that the provisions of Section 42 and 50 would not be applicable to the facts of the case. According to her, these provisions were complied with but even if they would not have been complied, the prosecution case would not suffer on that ground. 20. The evidence in respect of this aspect is already pointed out and in my opinion, these provisions are also complied. In fact, the provisions of Sec.42 are applicable only when entry, search or seizure and arrest is to be made in any building, conveyance or enclosed place and not at the public place to which