1 Appeals-950-971-1279-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 950 OF 2007 IN SPL.N.D.P.S. CASE NO. 50 OF 2005 ALONG WITH CRIMINAL APPEAL No. 971 OF 2007 with CRIMINAL APPEAL NO.1279 OF 2007 CRIMINAL APPEAL NO. 950 OF 2007 Ansar Ali Yusuf Khan ) Indian Natinal, Hindu, age 48 yrs, ) residing at Ground Floor, Building No.12, ) Chunna Gulli, Sakaria Street, ) Kolkatta0700 007. ) (Presently lodged in Nasik Central Prison.) ).. Appellant (Orig. accused No.3) vs. 1. Union of India ) (through Narcotics Control Bureau) ) 2. State of Maharashtra. ) Respondents (Orig. complainant) CRIMINAL APPEAL NO. 971 OF 2007 Mr. Abdul Rashid S/o. Abdul Shakoor ) Indian National, Hindu, age 33 years, ) residing at Post Mallipura, Tahsil Bandkush ) Dist. Mandsor, M.P. ) (presently lodged in Nasik Central Prison) ).. Appellant (Orig. accused No.2) vs. 1. Union of India ) (through Narcotic Control Bureau) ) 2 Appeals-950-971-1279-07.sxw 2. State of Maharashtra. ).. Respondent (Orig. complainant) CRIMINAL APPEAL NO. 1279 OF 2007 Iqbal Shaikh @ Bhaijan ) S/o. Abdul Rasheed Shaikh ) Indian National, Age: 37 years, ) R/o. Bhawani Mandi, Near Bhawani Mandi ) Police Station Bhawani Mandi, Madhya ) Pradesh (at present lodged at Kolhapur ) Central Prison, Kolhapur (M.S.). ).. Appellant/ (Orig. accused No.1 Vs. 1. M.V.Henry ) Intelligence Officer, Narcotics ) Control Bureau Mumbai 400 038. )..Respondent No.1 Orig. coomplainant 2. The State of Maharashtra ).. Respondent NO.2 Ms. Yogini Kadam,Advocate, for the applicant (in Appeal No.950/2007) Mr Atul Sarpande, advocate for the appellant (in Appeal No.971/2007) Shri Sherali Khan, Advocate for the appellant (in Appeal No.1279/2007) Shri Mandar Goswami, Advocate, for the Respondent No.1 UOI-NCB (in all the appeals) Smt. P.P.Shinde, APP, for the respondent NO.2 State (in all the Appeals). CORAM: J.H.BHATIA,J. DATE : 27th September, 2011. JUDGMENT: 1. These Appeals are preferred by original accused Nos. 1 to 3 against 3 Appeals-950-971-1279-07.sxw the order passed by the Special Judge for NDPS Cases, Greater Bombay, in NDPS Special Case NO.50/2005 whereby the accused persons were convicted for the offences punishable under Section 29 read with Section 8(c) and Section 21(c) of the NDPS Act and 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 further R.I. for six months. 2. Prosecution case, in brief, is that on 28.11.2004, the Intelligence Officer PW-1 Jitendra Dubey attached to Narcotic Control Bureau of Customs Department and his colleagues Vipin Nair and P.C.Namboodiri received information that one person viz. Iqbal from Bhavani Mandi, Madhya Pradesh was likely to arrive at the Naka of Main Road at Rafi Ahmed Kidwai Marg, outside the Railway Gate No.4, Wadala, Mumbai, around 9.15 to 9.30 a.m., along with his associate, for delivery of 2 kg. of heroin to one Ansar Ali, who would be wearing white shirt and white dhoti. Immediately, the information was typed on the computer, at about 8 a.m. As the intelligence note Exhibit 13, which was signed by all these three officers and was placed before their superior PW-7 Ajit Patil, who was the Superintendent of NCB. PW-7 Ajit Patil also endorsed and signed the said information and immediately placed the same before his superior Mrs. Alka Tyagi, who was the Zonal Director of NCB. She also endorsed and signed the said intelligence note and approved action of surveillance. 4 Appeals-950-971-1279-07.sxw Immediately after that a team consisting of PW-1 Jitendra Dubey, PW-3 Henry, PW-7 Ajit Patil and other officers namely, Kedare, Poojari, Nair, Namboodiri and Sepoy Darekar was formed. The said team proceeded and reached the spot at about 9 to 9.15 a.m. Two persons were called to act as panch witnesses and they were also informed about the information and purpose of raid. The members of this team kept a watch for about 15 minutes, when one person wearing white shirt and white dhoti came at the spot with a polythene carry bag in his hand. He was accused No.3 – Ansar Ali. At about 9.45 a.m. two more persons, who are identified as accused No.1 Iqbal Shaikh and accused No.2 Abdul Rashid, approached the accused No.3 Ansar Ali. Accused No.2 Abdul Rashid was carrying a black coloured hand bag. He handed over the said black coloured hand bag to the accused No.3. Immediately, all these three accused persons were surrounded by the members of the raiding party and were apprehended. The accused persons disclosed their names and the place of residence. Accused No.1 Iqbal Shaikh disclosed that he was resident of Bhavani Mandi and accused No.2 Abdul Rashid, who was holding the black coloured hand bag when he came there, disclosed that he was resident of Mandsour in Madhya Pradesh, while accused No.3 Ansar Ali disclosed that he was resident of Calcutta. All these three accused persons were taken to the vehicle of the NCB which was parked at the spot. Before taking their personal search, the officers of NCB informed each of the three accused 5 Appeals-950-971-1279-07.sxw individually that they had right to be searched before the Gazetted Officer or Magistrate, but they declined. Thereafter, PW-3 Henry took personal search of accused No.1 Iqbal Shaikh and accused No.2 Abdul Rashid. However, no contraband was found from their person. During personal search of accused No.1 some cash, a mobile phone and railway ticket were found. The cash amount was returned to him. During personal search of accused No.2, a railway ticket and an election card were found. During personal search of accused No.3 as well as during search of the bag which was with accused No.3 since beginning, only personal belongings and some cash were found. Thereafter, the black coloured hand bag was searched. It contained some personal belongings of accused No.2 Abdul Rashid and one heat-sealed polythene packet containing brown powder. On enquiry, accused Nos. 1 and 2 informed that the said powder was heroin and they had brought the same to deliver to accused No.3 Ansar Ali. The said polythene packet was cut and opened and small quantity of powder was taken out and was tested with the help of testing kit. The result was positive for heroin. The total weight of powder was 2 kg. Two samples of 5 grams each were taken from the bulk quantity and they were kept in two polthene sachets , each of which was sealed and kept in separate paper envelopes, which were sealed with NCB Seal No.02. The label, giving description of the contents, were affixed on the envelopes. The labels were duly signed by the panchas and PW-3 Henry. The 6 Appeals-950-971-1279-07.sxw balance quantity of heroin remained in the said bag which was again heat sealed and it was kept in card board carton which was closed with small scotch tape. The label giving description was affixed on it and it tied with jute string and was sealed with the seal. The black coloured hand bag was also kept in a separate cardboard. About all this proceeding, a panchnama was prepared, which was signed by the panchas as well as the officers. 3. After completing search and seizure proceedings and panchnama, the officers took the property and the accused persons to the Customs Office where the statements of all the three accused persons were recorded under Section 67 of NDPS Act. On the same day, after recording statements the accused persons were arrested under separate arrest memo and the reports were submitted to the senior officers. While the remaining property in the sealed carton and the seal were handed over to PW-7 Ajit Patil, who was the custodian of the godown of NCB, PW-3 Henry forwarded one sample to the Deputy Chief Chemist of the Customs Department and one sample to the Forensic Science Laboratory, Maharashtra State, for the purpose of analysis. C.A. Reports confirmed that the samples were heroin. The accused did not have any permit or authorization either for possession or transportation of the heroin. Therefore, after investigation, PW-3 Henry filed a formal complaint in the Court of Special Judge, NDPS and it came to be registered 7 Appeals-950-971-1279-07.sxw as NDPS Special Case No.50 of 2005. 4. The accused Nos. 1 to 3 were charged for the offences punishable under Sections 29 read with 8(c) and 21(c) read with Section 8(c) and Sec. 29 of the NDPS Act. The accused pleaded not guilty. 5. On behalf of prosecution, in all 11 witnesses were examined and several documents were placed on record. The trial Court after hearing the parties convicted and sentenced the accused as stated above. 6. As far as the main incident about getting information, preparation for raid, search and seizure and actual procedure of search and seizure are concerned, evidence of PW1 Jitendra Dubey, PW-2 Chandrashekhar Kedare, PW-3 Henry, PW-4 Sanjay Poojari, PW-7 Ajit Patil and PW-8 Shridhar Pandey is important. PW-1 to PW-4 were the Intelligence Officers attached to the Narcotic Control Bureau. PW-7 Ajit Patil was the Superintendent of that department while PW-8 Shridhar Pandey was the panch witness. Evidence of PW-1 Jitendra Dubey shows that on 28.1.2004 in the morning, he was present in the office along with his colleague Vipin Nair and Namboodiri. They received information from the informant that one person by name Iqbal from Bhavani Mandi, Madhya Pradesh 8 Appeals-950-971-1279-07.sxw would be arriving at the Naka on main road of Rafi Ahmed Kidwai Marg, outside railway gate No.4, Wadala, Mumbai, between 9.15 to 9.30 a.m., along with one associate for delivery of 2 kg. of heroin to a person by name Ansar Ali, who would be wearing white shirt and white dhoti. As soon as the intelligence was received, PW-1 Jitendra Dubey typed it on the computer and prepared it at 8 a.m. The said Intelligence note, Ex.13 was signed by PW-1 Jitendra Dubey as well as his two colleagues P.S.Namboodiri and Vipin Nair. As per his evidence, immediately he placed intelligence note before his superior PW-7 Ajit Patil, who endorsed the intelligence note and approved the proposal to maintain surveillance. PW-7 Ajit Patil placed this note before his senior the Zonal Director, Mrs. Alka Tyagi who also signed and approved the said intelligence note. 7. Evidence of PW-3 Henry shows that at about 8.15 a.m. on 28.1.2004, his Superintendent PW-7 Ajit Patil informed him about the intelligence received and handed over the intelligence note along with NCB Seal No.02 and directed him to proceed for the raid and if seizure would be effected to use the seal for sealing the samples and seized articles. PW-7 Ajit Patil also asked him to form a team to proceed to the spot. PW-3 Henry deposed that he collected all the necessary material, including field testing kit, weighing machine, cardboard carton,envelopes, jute string etc. which would be necessary for the purpose of 9 Appeals-950-971-1279-07.sxw search and in case of seizure. A team consisting of PW-3 Henry, PW-1 Jitendra Dubey, PW-2 Chandrashekhar Kedare, PW-4 Sanjay Poojari, PW-7 Ajit Patil and other officers, namely, Vipin Nair, P.S.Namboodiri and other attendant staff was formed. All the members of this team reached Rafi Ahmed Kidwai Marg at about 9 a.m. According to PW-3 Henry, he called two panch witnesses and introduced the officers of the raiding party to panchas and informed them about the information and the purpose of raid. 8. The evidence of PW-1 Jitendra Dubey and PW-3 Henry reveals that at about 9.30 a.m., they noticed one person wearing a white shirt and dhoti waiting outside the Railway Gate NO.4 and looking for someone. He was also having a plastic carry bag. The description of that person tallied with the person who was to receive the consignment. At about 9.45 a.m., they also noticed two more person coming there. One of them was carrying a black coloured hand bag. These two persons approached the first referred person wearing white shirt and dhoti and had handed over the black coloured hand bag to the said person. At that stage, the members of the raiding party along with the panchas approached those three persons, who are accused before the Court. The person who was wearing white shirt and dhoti and received the black coloured hand bag disclosed his name as Ansar Ali from Calcutta. He is accused No.3. Other two persons, who 10 Appeals-950-971-1279-07.sxw had come there with the bag identified themselves as accused No.1 Iqbal Shaikh from Bhavani Mandi, Madhya Pradesh and accused No.2 Abdul Rashid from Mandsour. As per the evidence of PW-1 Jitendra, when accused Nos. 1 and 2 came there, the black coloured bag was actually with the accused No.2 and he handed over the same to accused No.3 Ansar Ali. 8A. As per their evidence, all these three accused persons were taken to the office vehicle of NCB, which was parked there. Each of them was informed by PW-3 Henry that they had the right to be searched in presence of the Gazetted officer or Magistrate, but they declined that offer. Thereafter personal search of accused persons was taken. As per the evidence of PW-1 Jitendra Dubey and PW-3 Henry as well as other officers, during personal search of the accused persons, no contraband was found. Only some personal belongings, railway tickets and cash were recovered. Railway tickets found with accused Nos. 1 and 2 were seized, while cash was returned to them. After personal search was over, the black coloured hand bag was searched. It contained personal belongings of accused No. 2 – Abdul Rashid and also one heat sealed polythene bag containing brown powder. On enquiry, accused Nos. 1 and 2 informed that the powder was heroin and they had brought the same to deliver to accused No.3 Ansar Ali. The polythene bag was cut open and a small quantity of powder was taken and tested 11 Appeals-950-971-1279-07.sxw with the help of field testing kit. The result was positive for presence of heroin. The powder in the polythene bag weighed 2 kg. Out of that powder, two samples were taken and put in separate polythene sachets, each of which was heat sealed and kept in a separate paper envelope. The paper envelopes were even closed and sealed with NCB Seal No.02. The description of the contents were written on the said envelopes. The balance or the bulk quantity of the powder was allowed to remain in the polythene bag, which was again heat-sealed and kept in a cardboard carton, which was closed with scotch tape . The label with description of the contents was also affixed on the said carton.. It was sealed with Seal No.02. The black coloured hand bag in which the contraband was found was kept in another cardboard carton which was also tied and closed and label giving description was affixed on the same. About all this proceeding, the panchnama ex.18 was prepared. The panchnama was signed by both panch witnesses and PW-3 Henry who had conducted the search and seizure and drawn the panchnama. The copies of the panchnama were supplied to each of the accused and they acknowledged receipt and put their signatures below the said panchnama. PW-1 Jitendra Dubey and PW-3 Henry deposed about the search, seizure and panchnama in detail. Other witness PW-2 Chandrashekhar Kedare,PW-4 Sanjay Poojari and PW-7 Ajit Patil also broadly corroborated the evidence of these two officers. PW-8 Shridhar Pandey the panch witness also supported the prosecution case. 12 Appeals-950-971-1279-07.sxw 9. Evidence of PW-3 Henry shows that after completing the search and seizure and recording of panchnama, he along with accused and other members of the raiding party went to the office of NCB. He submitted search and seizure report Ex.22 to his superior PW-7 Ajit Patil, who signed and dated and then the said search and seizure report was placed before the Zonal Director, who also signed it. As per his evidence, he deposited the carton marked H containing the balance or bulk quantity of 1.990 kg. Heroin along with another carton marked P, containing the black coloured hand bag, with PW-7 Ajit Patil, who was in charge of godown or warehouse of the NCB, used for keeping the property with deposition letter dated 28.11.2004 Exhibit 23. This letter also disclosed that two samples of 5 grams each, S-1 and S-2, were drawn from the total quantity of 2 kg. Heroin. He also deposed that he had handed over the NCB Seal No.02 to PW-7 Patil within five minutes after reaching the office. As per evidence of PW-3 Henry, he forwarded sealed sample S-1 to the Deputy Chief Chemist through PW-11 Khan Mohamed along with cover test memo Ex.25 and the sealed sample marked S-2 to the Director Forensic Science Laboratory with his covering letter Ex.24 through PW-5 Narayan Panigrahi. Evidence of PW-5 Narayan Pannigrahi shows that he received sealed sample packet marked S-2 along with the forwarding letter from PW-3 Henry on 30.11.2004 and on the same day he went to 13 Appeals-950-971-1279-07.sxw the office of the Forensic Science Laboratory and deposited the said sample in intact condition. Exhibit 24 the covering letter addressed to the Director, FSL, Kalina reveals that one sealed envelope was receive by the office of Director, FSL on 30.11.2004 itself along with the test memo. Exhibit 27 is the report from the Chemical Analyser to the Government Forensic Laboratory. It shows that one sealed envelope marked S-2 with seals intact and as per the copy sent was received on 30.11.2004 from one Panigrahi from the office of NCB. On analysis heroin (Diacetyl Morphine) along with other opium alkaloids was detected in the exhibit. 10. Evidence of PW-11 Khan Mohamed reveals that on 29.11.2004, he received one sealed sample envelope `marked S-1’ from PW-3Henry for depositing the same with Deputy Chief Chemist of NCB. PW-11 Khan Mohamed himself typed the test memo in triplicate, signed the same and put the seal mark of NCB Seal No.02 on the test memo, after obtaining the seal from PW-7 Superintendent Patil. According to him, after putting the seal on the test memo, he returned the seal to PW-7 Ajit Patil. According to him, he himself went to the office of the Deputy Chief Chemist and deposited the same in sealed condition along with test memo in that office. Exhibits 25 and 26 are copies of the same test memo bearing Lab No.155 dated 29.11.2004, which was deposited in 14 Appeals-950-971-1279-07.sxw the office of Deputy Chief Chemist. It bears signature of PW-11 Khan. It also bears the specimen seal of NCB, which was used for sealing the sample. The endorsement on the same also reveals that one H.K.Yadav from the office of Deputy Chief Chemist had received the sample along with test memo on the same day. Exhibit 26A is th test report from the Assistant Chemical Examiner, New Customs House. It shows that one sealed sample marked S-1 was received. The sample was in the form of brown coloured powder and on test it answered for Diacetyl Morphine i.e. heroin. The remnant of the sample was again sent back in the sealed packet with facsimile of the seal affixed on the same by the office of the Asst. Chemical Examiner, Customs House. This report is proved by PW-6 Harindrakumar Yadav, Asst. Chemical Examiner. The above evidence goes to show that the sealed sample packets were sent to the State Forensic Laboratory and the Laboratory of the NCB with intact seals and specimen of the seals used for sealing samples and both the samples were found to contain heroin. 11. Evidence of PW-4 Sanjay Poojari shows that after completing the search and seizure procedure at the spot, these officers and the accused persons went to the office of NCB. After reaching the office, PW-7 Ajit Patil instructed Sanjay Poojari to record statement of accused No.2 Abdul Rashid and he recorded his statement in Hindi under Section 67 vide Exhibit 31. In that statement, the 15 Appeals-950-971-1279-07.sxw accused No.2 Abdul Rashid disclosed that he had received two kg. heroin from accused No.1 Iqbal on 25.11.2004 at his native place at Bhanpua, Madhya Pradesh and he was instructed by accused No.1 Iqbal to catch a train for Mumbai on 27.11.2004 and to meet him at platform No.2, Malad, Mumbai and accordingly, he came to Mumbai with the consignment of heroin and accused No. met him at Malad Station in the morning of 28.11.2004. Then both of them proceeded to the spot, where accused No.2 handed over the said bag containing 2 kg. Heroin to accused No.3. He also confirmed the procedure of search and seizure as recorded in the panchnama. After recording of his statement was completed, PW-4 Sanjay Poojari arrested him by serving the memo of arrest Exhibit 32 and also submitted arrest report Ex.33 to his superior Superintendent Patil. 12. PW-10 Ashokkumar Singh, who was also working as Intelligence Officer in NCB office at Mumbai, deposed that on 28.11.2004, he was directed by his Superintendent Mr. Patil to record statement of accused No.1 Iqbal Shaikh under Section 67. In the statement, accused No.1 Iqbal disclosed that he was resident of Village Malipura, Tehsil Bhanpura, District Mandsaur, M.P. He had handed over 2 kg. Heroin to accused No.2 Abdul Rashid on 25.11.2004 with instructions to carry the consignment to Mumbai and meet him at Borivali 16 Appeals-950-971-1279-07.sxw Station. He also deposed that he had travelled by general coach of Jaipur Super Fast which he boarded at Bhavani Station. He reached Mumbai Central Railway Station at about 8 a.m. He also stated that he had assured to pay amount of Rs. 5,000/- to the accused No.2 Abdul Rashid for carrying the consignment of heroin to Mumbai. It may be noted that on the previous day also some contraband was seized by NCB and accused No.1 Iqbal was interrogated and his statement was recorded not only about seizure made in the morning of 28.11.2004 in respect of the present case, but also about seizure made on the previous day. The original statement was produced in another case and copy of the same marked Ex.47 was produced in this matter. He also admitted that the said consignment of black coloured hand bag was handed over to the accused No.3 at the spot where it was finally seized by NCB. His evidence also shows that after recording statement of accused No.1 Iqbal Shaikh, he had served the arrest memo on the accused No.1 and arrested him. He also submitted the arrest report Ex.39 before the Superintendent Patil. 13. Evidence of PW-2 Chandrashekhar Kedare shows that he was a member of the team, which conducted the raid and searched and seized the property. According to him, after reaching the office , he was directed to record statement of accused No.3 Ansar Ali under Sec. 67. He recorded statement of 17 Appeals-950-971-1279-07.sxw accused No.3 Ansar Ali as per the information given by him. While confirming the events which had taken place that morning resulting into seizure of 2 kg. Heroin from his possession, accused No.3 Ansar Ali also stated that on 25.11.2004 at about 10 p.m. he had come to Mumbai from Kolkatta by Gitanjali express. After reaching Mumbai, he contacted accused No.1 Iqbal Shaikh on his mobile and had asked for heroin. To this, accused No.1 Iqbal Shaikh had told him that he was not having the stock at that time but would arrange heroin within 2 -3 days. Therefore, accused No.3 Ansar Ali stayed at the house of his friend in Wadala Slum Area. In the morning on 28.11.2004, he received a call from the accused No.1 Iqbal that he had arranged heroin for him and he would be coming personally to deliver the same at the Naka of the main road of Rafi Ahmed Kidwai Marg, Railway Gate No.4, Wadala. He also disclosed that he had come into contact with accused No.1 Iqbal in Arthur Road Jail, because both of them were undergoing sentence of imprisonment in separate cases under the NDPS Act. The statement Ex.15 was signed by accused No.3. Evidence of PW-2 Chandrashekhar Kedare shows that after recording