IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 726 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE M.S.PARIKH and MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SATYANARAYAN RAMJILAL PEDIWAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PM VYAS for Petitioner MR SP DAVE for Respondent No. 1 MR UDAY VYAS for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.PARIKH and MR.JUSTICE H.K.RATHOD Date of decision: 15-16/12/1999 ORAL JUDGEMENT 1. This conviction appeal arises from the judgment and order dated 16/7/1990 passed by the learned Addl. City Sessions Judge, Court No.10, City of Ahmedabad in Sessions Case No. 323/1989. The appellant herein, referred to as the accused, faced charge to the effect that at about 4.30 O'clock in the afternoon on 24/6/1989 the accused kept in his possession 53,000 tablets Diazepam which is a psychotropic substance while he was present near Hari Om Market, Murli Market, near the area known as Revdi Bazar in the City of Ahmedabad without pass, permit or licence and thereby he committed offence punishable u/S. 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Upon the trial for the said charge and considering his defence as well as after hearing the Ld. Advocates for the respective parties the Ld. trial judge found the accused guilty of the offence punishable u/S. 22 of the NDPS Act and convicted him for the said offence and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/-, in default to undergo R.I. for a period of two years with direction that the accused shall be given set off for the period during which he remained in judicial custody as an under trial prisoner. This conviction and sentence has been subjected to challenge by the accused before this Court. 2. In order to appreciate the submissions made on behalf of the accused before this Court as also in order to appreciate the version of the prosecution in reply, it would be appropriate to set out the facts of the case of the prosecution and defence as under :- 3. There was a specific information reduced in writing to the effect that one person was to carry a parcel near the office premises of Dolphin Services, 2nd floor, Murli Manohar Market, Revdi Bazar, Kalupur, Ahmedabad, which activated the officers of the Customs and Central Excise Department for laying raid at around 4.30 p.m. on 24/6/1989. It was noticed that the accused was carrying a parcel in his hand near the said office premises. He was, therefore, accosted in the presence of two Panchas who were kept present by the Custom officers. The present accused who had a parcel in his hand was brought to the office of the customs, Paldi Division, Paldi, Ahmedabad, along with the Panchas where detailed panchanama in the presence of the panchas was prepared, and the contents found from inside the parcel were noted. As per the prosecution theory, inside the parcel, there were 53 plastic packets, each plastic packet containing 1000 tablets. So, in all there were 53000 tablets of total price of Rs.2,65,000/- which according to the prosecution was the international market value of those tablets. The present accused could not produce any voucher or permit or licence for keeping the aforementioned 53,000 tablets in his possession. As per the prosecution version these tablets were manufactured from (1) Diazepam, (2) Promltrearine, (3) Diphen Hydramine and (4) Binding Agent. As per the prosecution version, these tablets were prepared out of prohibited psychotropic substance, namely Diazepam which has been listed at entry no. 43 of the Schedule appended to the NDPS Act. The seizure of the aforesaid tablets was effected under a Panchnama drawn on the same day i.e. on 24/6/1989, which was completed at about 11.00 a.m. As per the story put forth by the complainant, on personal search of the accused one consignment note bearing No. 118334 dated 20/6/1989 issued by Dolphin Services, Bikaner pertaining to the transport of the said parcel containing the aforesaid tablets was also recovered by the raiding and searching party. Thereafter statement of the accused Satyanarayan Periwal was recorded on 25/6/1989 u/S. 67 of the NDPS Act in which the accused made these admissions and statements : He is B.Com. and LL.B. Part-I. He has two factories in Bikaner (Rajasthan) - one is known as Dexo India Electricals wherein electrical bulbs are manufactured and which is situated at G.1/217, Bichwal Industrial Area, Ganganagar Road, Bikaner; his second factory is located at G.1/213 Bichwal Industrial Area, Ganganagar Road, Bikaner and it is styled as Dex India in which there are four partners, namely he himself, his brother Shyam Sunder Periwal, his mother Kamladevi and his brother's wife Sulochana Nandkishor Periwal. For his second factory he has taken a loan of Rs.2,81,000/- from Rajasthan Finance Corporation, which was sanctioned either in August or September 1988 and thereafter he purchased capsules for the purpose of filling medicines and tablating machines for manufacturing capsules and tablets even though he did not possess any licence for his second factory. He knew that it was necessary to have a licence from the Health and Medicine Department for manufacturing any medicine and that he also did not possess any licence of Drugs Controller and that the Government, till the date of his statement, had not issued any licence to the accused or his factory. He had booked a parcel containing 53,000 tablets with Dolphin Services at Bikaner on 20/6/89 and this parcel was to be despatched through Dolphin Services and he had taken the delivery from Dolphin Services, Air courier, 2nd floor, Murli Manohar Market, Near Hari Om Market, Revdi Bazar, Ahmedabad. After taking delivery at 4.30 p.m. of the said parcel on 24/6/89, the Customs Officer made inquiry from the accused about the said parcel in presence of two panchas whereupon he declared that the parcel contained 53,000 medicine tablets and he was thereafter taken to the Customs Office, Paldi, where in presence of the Panchas the parcel was opened and it was found that the parcel contained 53,000 psychotropic substance tablets and on one side of these tablets "MX" was written and on the other side "R/L" was written in English which indicated that these were the markings on the tablets and that the market value of these tablets was Rs.2,65,000/-, the value of each tablet was Rs.5/-, that under the Panchnama seizure was made in the presence of the Panchas. The total weight of these tablets was 22,525 Kgs. and he was present when seizure was effected in presence of the Panchas. On his personal search, a pink colour voucher was also secured and seized from him and therein, in English, address of the head office of Dolphin Services, the date '20/6/89' and the No. C/N No. 118334 were written. From the pocket of his person a sum of Rs.1225/- was secured which was returned to him alongwith handkerchief, whereas the pink coloured voucher bearing C/N No. 118334 was seized by the Customs Officer in presence of the Panchas under the Panchnama and all the aforesaid seizure was effected in his presence. It was also admitted by the accused that the tablets seized from him were contraband tablets. He has further admitted that psychotropic substance tablets were manufactured by him in his factory Dexo India situated at G/1/273, Bichwal Industrial Area, Ganganagar Road, Bikaner, Rajasthan and that since 10 to 11 years he had learnt the process of manufacturing them from his experience of medicinal line. The accused also revealed in his statement that initially he was doing the business of selling medicine in wholesale in his medical store styled as "Satyanarayan Medico" situated opposite Gandhi Hospital and thereafter he started Rin Laboratory at 24, Parijat Society, Jogeshwari West, Bombay, for which he acquired loan licence and he had got medicines manufactured from a famous laboratory, but sold them in the market under his label between 1982 and 1984 and from 1984 to 1987 he did wholesale business in the name and style of Ram Pharma Medical Stores, situated at Rampura Futala, near Kot Gate, Bikaner. The accused also stated in his statement that in 1987 he thought of founding a medicine manufacturing factory. He also stated because of his vast experience in medical line he felt that it would be a very profitable proposition to manufacture psychotropic substance in the form of tablets. The accused has also admitted that he has manufactured these 53,000 psychotropic substance tablets by mixure of (1) Diazepam (2) Promethazime, (3) Biphen Hydramine in the proportion of 5 mg. Diazepam : 25 mg. Promethazine : 25 mg. Biphen Hydramine and 370 mg. Binding Agents, making it a mixture of 425 mg. and as such the weight of each tablet was 425 mg. He knew that Diazepam is psychotropic substance and it is an offence to possess, sell, transport and manufacture such substance and that it was punishable under the NDPS Act. The accused also stated that the raw material for the purpose of manufacturing 53,000 tablets of which seizure was effected by the Customs Officers was purchased from one Arora & Company, Bhagirath Palace, oppo. Railway Station, Old Delhi and the bill was obtained in the name of Pherjina Joshi, Ram Pharma, Opp. Railway Station, Bikaner because he had in the past a medical store Ram Pharma at Bikaner which was closed by him. He also stated that out of the raw material purchased from Arora & Company, he utilized some material and some material is still lying in the cupboard at the office of Dexo India, Bikaner and that these 53,000 tablets were manufactured by Dexo India between 15/6/89 and 19/6/89 and he had booked the said tablets at Dolphin Services, air courier, Rupam Hotel, Station Road, Bikaner and at that time since he happened to know Shri G.S. Chandak, who was present, he gave the name of consignee as "Jayanti Shah & Company, Ahmedabad", which name he had coined but he had informed Shri Chandak that he would personally take delivery of the parcel at Ahmedabad and at the time of booking he had not informed Mr. Chandak that the parcel contained psychotropic substance tablets. As regards pink coloured consignment note bearing C/N No. 118334 dated 20/6/1989 he had shown that the transport charge of Rs.375/- was to be paid out of which he had paid Rs.200/- to Shri Chandak and promised to pay Rs.175/- on his return from Ahmedabad and so far as the word 'credit' was written on the aforesaid voucher he had not been able to explain. The accused has also stated that after booking the parcel of these tablets he left for Bikaner by train for Ahmedabad at 11.00 a.m. and he reached Ahmedabad at about 7.00 p.m. on 23/6/1989. He went to the house of his sister Sudha Ashik Behani who stays at 15, Chirag Society, near Ankur Bus Stand, Naranpura, Ahmedabad - 13. He has also stated that he had gone to the office of Dolphin Courier, 222, Murli Manohar Market, near Hari Om Market, Revdi Bazar, Ahmnedabad and presented pink coloured slip bearing No. C/N No. 118334 dated 20/6/1989 and took the delivery of the parcel. It has also been disclosed in the statement of the accused that after taking delivery of the parcel while he was going to the market for selling 53,000 psychotropic substance tablets, he was accosted by the Customs Officers who took him to the Customs office at Paldi in his ambassador car and seized the said parcel. The accused has also stated that the manufacturing cost of these 53,000 tablets is only Rs.3500/- but its market value is around Rs.18,000/- to Rs.20,000/- and thus he would have earned profit of Rs.15,000/- to Rs.17,000/-, that he has not got any legal document or bill or voucher or any pass or permit or licence to possess these tablets and that in his statement he has also manifested that he has voluntarily made statement without any threat or inducement; that he read the statement before signing the same and it was written as per his say. 4. At the trial, his defence was that of denial. He has filed his further statement at the time of recording his statement u/S. 313 of the Code of Criminal Procedure, wherein he has stated that he is the power of attorney holder of his father and his wife, who were partners in the firm of Ram Pharma Distributors, Bikaner, who was having a shop for selling medicines in wholesale, that they have obtained licence for the said shop since 1980 under the Drugs and Cosmetics Act, which has been renewed till the end of 1991, that he is administering the business and one Vijayprakash Joshi is also working with him, that the nos. of the licences issued to them are 660 and 661 dated 26/6/1980 which have been renewed from time to time and the licences were in Form No. 21-C and Form No. 20-B and Form No. 21-B of the rules framed under the said Act. According to him, Diazepam tablets are mentioned in Schedule-II of the Rules framed under the said Act and, therefore, he was entitled to sell the said drug in wholesale on the basis of the licences issued to them. According to his defence he sold 53,000 Diazepam tablets to M/s. Jayantilal & Co. of Ahmedabad, in Bikaner as a person doing business of Ram Pharma Distributors. These tablets were purchased by Ram Pharma Distributors in the course of their business and they were sold to Jayantilal & Co. at Ahmedabad as per their order. As per his defence, a person from the firm Jayantilal Shah & Company went personally to take delivery of the goods and he gave delivery of those tablets to the said person by charging cash for the price of the goods and that the bill for the same was also prepared in his presence in his shop. As per his say, he has no knowledge as to what happened to the goods sold to Jayantilal Shah & Co. According to him he has not booked the goods sold to Jayantilal Shah & Co. from Bikaner nor has he sent the parcel containing the said tablets to Dolphin Courier Service, Ahmedabad. He has denied that he has received the parcel containing said tablets. He has denied that he has taken delivery of parcel containing 53,000 psychotropic substance tablets from Dolphin Courier Service on 24/6/1989 as alleged. He has also denied that he has gone to the office of Dolphin Courier Service. He has denied that he has signed in the delivery book of said courier service in token of having received the parcel in question and that the story put forth by the Customs Officers is a concocted story. He has stated that as a matter of fact, he had gone to the house of Ashok Behani with whom his cousin sister has been married, with a view to call his cousin sister on the occasion of marriage of brother of Ashok and while he came to Ahmedabad, he had also brought a sample bulb of 200 votts from his factory with a view to ascertain as to whether they would be getting market for the same. He has stated that on 24.6.1989, he had gone to the office of Ashok Behani situated at Madhupura, Ahmedabad and then he came out from the office at about 3.00 p.m. when one Officer of the Customs Department Shri Rathod and the complainant Superintendent Shri Trivedi caught hold of him and took him to the Paldi Office of the Customs Department. In his further written statement, he has also stated that he was detained in custody by the officers of the Customs Department from 24/6/1989 to 26/6/1989 and that he was not allowed to go out of the office of the Custom Department on the night of 24/6/1989 and 25/6/1989. He has also stated that he was tortured by many Custom Officers and although he has stated that their firm Ram Pharma Distributors holds a licence under the Drugs and Cosmetics Act and that he is a power of attorney holder and Jayantilal & Company has purchased 53,000 tablets of psychotropic substance from them at Bikaner, a false case has been concocted against him. He has also denied that they are keeping mandrex tablets in their shop. He has asserted that the officers of the Customs Department did not permit him to contact Shri Ashok Behani. He has denied that the consignment note was found from his possession and that he had sent the parcel containing the name of Jayantilal M. Shah as a consignee. He has also denied that he was served with summons to remain present on 24/6/1989 and 25/6/1989 before the Customs Officer. As per his say, his signatures were obtained on both the summonses on 26/6/1989 in the afternoon and at that time he was in the custody of the Customs Department. As regards his statement recorded by the Customs Department, it is his say that the officers of the Customs Department have beaten him and that he was not allowed to sleep at night nor was he provided any food and they obtained his signature on certain documents under coercion on 25/6/1989. As such he has not signed any document on 24/6/1989 and that the so called statements were recorded by the officers of the Customs Department as per the fancy and imagination of the Customs Officers. He has denied that he has taken delivery of any parcel from one Ghanshyamsing who is shown to be an employee of the Dolphin Services, Ahmedabad and has also stated that he has not signed in any book of Dolphin Services Ahmedabad, nor has he met said Ghanshyamsing as alleged. He has further stated that the Drug Controller of India Dr. Prem K. Gupta has issued one circular as per which it is not an offence to sell Diazepam tablets of various potency, even though Diazepam is shown as a psychotropic substance in the Schedule appended to the NDPS Act. He has alleged that though the Customs officers knew all these facts they concocted false case against him in order to falsely implicate him in the case under NDPS Act. 5. In support of his defence the accused has examined 8 witnesses. D.W. 1 Shivdas Bulakhidas Vyas, exh. 73 is an employee in Medical and Health Department, Government of Rajasthan who has proved the licences at exh. 75 and 76 issued to Ram Pharma Distributors, a medical store. D.W. 2 Chandru Sevakram exh. 77 is an employee of Telegraph Office in Bikaner, who has proved that the telegram at exh. 78 was sent from Ahmedabad to the accused at Bikaner and was delivered to him. D.W. 3 Sirajbhai Ismailbhai ex. 81 is the Jailor of Sabarmati Central Prison who has forwarded the application of the accused from Sabarmati Central Prison to the Customs Department. D.W. 4 Navnitbhai Manibhai exh. 83 is the owner of Raj Medical Stores, Ahmedabad, who has produced the licences of his shop and has deposed that Diazepam tablets could be sold in wholesale as also in retail, but in retail they are to be sold on prescription of the doctor. D.W. 5 Vaidnathh Kannan Lalguddi, ex. 89 is the Deputy Drugs Controller of India and he has produced the draft copy of the circular issued by the Drugs Controller of India to the State Drugs Offices and the Zonal Offices. D.W. 6 Kirit Ramanlal Raval, exh. 91 is the Legal Adviser of the Drugs Control Department of the Government of India who has produced a letter addressed to M/s. Champaneri, Chemical Agency, Baroda. D.W. 7 Rajendra Jawahar Lonia, exh. 93 is the Chartered Accountant, who has drafted the power of attorney of the partners of the firm Ram Pharma Distributors and got it executed and attested. D.W. 8 Ramajibhai Chunilal Periwal, exh. 95 is the father of the accused. 6. The Ld. Addl. Sessions Judge, after hearing the submissions made on behalf of the accused as well as the prosecution, and appreciating the defence version, held that on 24/6/1989 at about 4.30 p.m. at Murli Manohar Market, near Hari Om Market, the accused was found in possession of 53,000 tablets of Diazepam, which is a psychotropic substance and that it was an offence punishable u/S. 22 of the NDPS Act. That is how the accused is before this Court. 7. The appeal was admitted on 13/9/1990 and notice as to bail was issued by making it returnable on 20/9/1990. R & P was called for and appeal was ordered to be expedited and prayer for bail was not pressed by the accused. 8. When this appeal came up for hearing before this Court, Mr. Vyas learned advocate for the accused has submitted that the accused would not like him to argue before this Court. He was accordingly permitted to intimate the accused about the progress of hearing of this appeal and he accordingly sent telegram to the accused on 8/12/1999 and thereafter since Mr. Vyas was the advocate who was appearing for the accused was required to continue arguments. He has accordingly argued the matter since he was conversant with the facts of the case having conducted the matter before the Ld. Addl. Sessions Judge and at the conclusion of his arguments we have heard Mr. S.P. Dave, Ld. A.P.P. for the State and Mr. Uday Vyas, Ld. Addl. Standing Counsel appearing for the Central Government. When this judgment was in progress today, (15/12/1999), Mr. Vyas, learned advocate for the accused submitted that so far he has not received any communication from the accused, who, according to him, was transferred from the jail in the State of Gujarat to the jail in the State of Rajasthan pursuant to the order of the Hon'ble Supreme Court. He, however, submitted that this appeal has remained before this Court and the same has not been directed to be transferred anywhere else. Therefore, we accordingly proceed to consider the submissions made on behalf of the accused. 9. Mr. Vyas, learned advocate appearing for the accused has read over before us the evidence adduced both by the prosecution as well as by the defence before the trial Court. Firstly, he submitted that the main witness PW 3 Mr. Trivedi Exh. 17 has introduced the prosecution case and there are variations in the evidence of other witnesses in so far as how the prosecuting party reached the place of the incident is concerned. He also submitted that the confessional statements of the accused were obtained by duress and coercion as alleged in the defence. He next submitted that M/s. Ram Pharma Distributors held the licences which were renewed under the Drugs and Cosmetics Act and the accused was acting on behalf of the said Ram Pharma Distributors and the accused has explained his possession of 53000 tablets of Diazepam under valid licence. Finally, he has submitted that there has been violation of section 50 of the NDPS Act and, therefore, conviction of the accused u/s. 22 of the NDPS Act deserves reversal. 10. On behalf of the prosecution, it has been submitted that the prosecution has set out consistent story in the evidence of all the witnesses and even if there might be some variations, it would be minor in nature. Diazepam is one of the psychotropic substances which has been mentioned in the First Schedule of the NDPS Act. Therefore, it was