IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 610 of 1998 with CRIMINAL APPEALS No 624, 634, 664 & 692 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE A.L.DAVE and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SURENDRA KATHADBHAI JEBALIA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 610 of 1998 MR SV RAJU for ANSHIN H DESAI for Petitioner No. 1 MR RJ GOSWAMI for the Appellant. MR SS PATEL, APP, for the respondent. 2. Criminal Appeal No. 624 of 1998 MR MB AHUJA for the Appellant MR ASIM J PANDYA for Respondent No. 1 MR SS PATEL, APP, for respondent No.2. 3. Crminal Appeal No.634 of 1998 MR BB NAIK for the Appellants MR ASIM J PANDYA for respondent No.1 MR SS PATEL, APP, for respondent No.2. 4. Criminal Appeal No.664 of 1998 MR YF MEHTA for the Appellant. MR ASIM J PANDYA for respondent No.1. MR SS PATEL, APP, for respondent No.2 5. Criminal Appeal No.692 of 1998 MR HN JHALA for the Appellants. MR SS PATEL, APP, for the respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 20/02/2003 ORAL JUDGEMENT (Per : MR.JUSTICE A.L.DAVE) 1. These Criminal Appeals arise out of a common judgment and order rendered by learned Additional City Sessions Judge, Court No.10, Ahmedabad, in Sessions Cases No.236 of 1994, 72 of 1995, 297 of 1995 and 160 of 1996 on May 14, 1998, recording conviction under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short). As the Sessions Cases arose out of the same incident and transaction, they were tried together. Likewise, as these appeals arise out of the same judgment and order, they are tagged and heard together and are disposed of by this common judgment. 1.1 Criminal Appeal No.664 of 1998 is preferred by Shantilal Haridas Patel alias Katori, who was accused No.1 before the Trial Court. 1.2 Criminal Appeal No.692 of 1998 is preferred by Haji Suleman Khafi, Dinesh Alabhai Dhruv alias Diniyo, Jusab Razak Ali Sidi alias Dado, Khemraj Amrabhai Gadhvi and Gafar Suleman Khafi, who were original accused Nos.2, 3, 4, 5 and 10, respectively. 1.3 Criminal Appeal No.634 of 1998 is preferred by Sidu Husen Sida and Chhagan Haribhai Kuchhadia alias Langdo, where were accused Nos.6 and 8, respectively. 1.4 Criminal Appeal No.624 of 1998 is preferred by Chandrakant Ishwarlal Acharya, who was accused No.7 before the Trial Court. 1.5 Criminal Appeal No.610 of 1998 is preferred by Surendra Kathadbhai Jebalia, who was accused No.9 before the Trial Court. 2. The appellant in Criminal Appeal No.664 of 1998 is represented by learned Advocate, Mr. Y.F. Mehta; the appellants in Criminal Appeal No.692 of 1998 are represented by learned Advocate, Mr. H.N. Jhala; the appellants in Criminal Appeal No.634 of 1998 are represented by learned Advocate, Mr. B.B. Naik; the appellant in Criminal Appeal No.624 of 1998 is represented by learned Advocate, Mr. M.B. Ahuja; and the appellant in Criminal Appeal No.610 of 1998 is represented by learned Advocate, Mr. S.V. Raju. 2.1 Directorate of Revenue Intelligence is represented by learned Additional Central Government Standing Counsel, Mr. Asim Pandya, whereas the State of Gujarat is represented by learned Additional Public Prosecutor, Mr. S.S. Patel. 3. On basis of intelligence collected and developed by the officers of the Directorate of Revenue Intelligence, Ahmedabad ("D.R.I." for short), a watch was organized in Junagadh district and on interception of trucks bearing No.GJ-3-U-4022 and GJ-10-T-8517 in the early morning hours of 11.5.1994, a large quantity of methaqualone tablets (5225.300 kg. approximately), commonly known as "mandrax", was seized, which has, ultimately, led to prosecution and conviction. 3.1 As per the prosecution case, an Intelligence was received on 8.5.1994 by the officers of Ahmedabad office of D.R.I. to the effect that one Haji Ismail Shumbhania of Salaya, then residing at Dubai, was attempting to export about one and a half truck load of mandrax tablets. The consignment of mandrax tablets was, at that time, stored at some Wadi situate somewhere near Junagadh. The safety, storage and transport of the consignment was managed by Chhagan Haribhai Kuchhadia alias Chhagan Langdo, a known smuggler of Probandar, Chandrakant Ishwarlal Acharya, another known smuggler of Ahmedabad, Batuk Bapu, a well-known figure in Junagadh transport circle and his brother-Surendra Bapu of Junagadh. The Intelligence further revealed that the consignment was to be transported from Junagadh area to Mangalore on the 9th or 10th May, 1994 in two trucks bearing registration No.GJ-3-U-4022 and GJ-1-T-8517. The said trucks were to be provided by Ali Suleman Khafi and Haji Suleman Khafi of Jamnagar. The trucks were to be manned by Jusab Razak Ali Sidi alias Dado and Dinesh Alabhai Dhruv alias Diniyo, the two trusted men of Ali Suleman Khafi. The cargo was likely to be covered with consignment of garlic to be purchased from the local market. The said information received by the officers of D.R.I., Ahmedabad, was reduced into writing and was forwarded to the Assistant Director, D.R.I., Zonal Unit, Ahmedabad. Following this intelligence, action was initiated by the D.R.I. officers directing officers from Ahmedabad and Jamnagar to reach Junagadh and follow further directions. Accordingly, officers organized a watch as per directions given from time to time. Considering the intelligence, a watch was also kept at the Bridge on Narmada river, near Jhadheshwar/Bharuch to ensure that the consignment does not escape as the location in Junagadh district was not exactly known and the route was also not known. One of the trucks was identified and after some time, the second truck was also identified near Junagadh and, ultimately, both the trucks came to be intercepted on 11.5.1994 in early morning hours around 6.30., near Navagadh Bridge. Accused Nos.3, 4, 5 and 6 were found in the truck. The trucks were apparently carrying wheat, which was covered with a tarpaulin. On inquiries being made by the officers of D.R.I., they were informed that the trucks carried consignment of wheat and, for that purpose, requisite documents were also shown. However, because of the intelligence, the officers insisted for inspection and, on inspection, it was found that 22 drums/barrels in each of the trucks were concealed beneath the bags containing wheat. The barrels were heavy and were meant for transhipment of oil with a capacity of 200 litres each. Accused Nos.3, 4, 5 and 6 could not furnish any documents relating to the barrels nor could they tender any explanation therefor. On being interrogated, it was revealed that the drums were being transported without any document and accused No.3 disclosed before the officers of D.R.I. that they were asked to go to Junagadh to load the barrels and Batuksinh of Shyam Transport of Junagadh, would arrange for the papers. They were asked to load the barrels and then cover them up with wheat bags as there would be no documents for the barrels. They were also asked to get in touch with one Hajibhai of Bombay at a particular telephone number after reaching Mangalore, who would then give them direction as to what is to be done with the barrels. Having regard to the statements and having found the barrels to be very heavy and carrying suspicious material, the officers of D.R.I. decided to take the trucks to Jamnagar office of D.R.I., as inspection of the barrels was not possible on the road for want of implements, etc. The entire transaction was recorded in a Panchnama drawn in presence of Panch witnesses-Jagdish Govindbhai Gondalia and Bharat Babulal Mer, both of Jetpur, district Rajkot and the trucks were, accordingly, taken to the D.R.I. office at Jamnagar. On reaching the D.R.I. office, at Jamnagar, around 11.00 A.M. on 11.5.1994, the mouth of the barrels were opened to find black coloured oil like substance. A rod was inserted into the mouth, but it was found that the rod could not move diagonally due to a partition like obstruction. Therefore, the top lid of the barrel was cut open and it was found that the drums were specially designed and fabricated with a barrel like compartment just under the mouth of the barrel and the rest of the barrel formed another compartment, which contained mandrax tablets packed in polyethylene bags in a large quantity. The plastic bags containing the mandrax tablets were put in that compartment with white powder as packing and to prevent movement of the packets. A primary test was conducted to find that the tablets were methaqualone tablets (mandrax). Each of the 44 barrels was thus opened and all of them were found to carry mandrax tablets. Samples were taken out and sealed in different packets, in a way that they maintain their individual indentity with respective barrels. Samples were sealed. The remainder of the contraband was also properly sealed and weighed. It is recorded in the Panchnama that the sealing was done in a manner which would leave no scope for any tampering without damaging the wax seal. The weight of the mandrax tablets seized from one truck was 2597.300 kgs. and from the other, it was 2628.000 kgs. Thus, total weight was 5225.300 kgs. The Panchnama containing all details was then concluded. The seized samples of mandrax tablets were sent to the Forensic Science Laboratory (FSL) and the FSL, after analysis, gave a clear opinion that the tablets were methaqualone tablets (mandrax), a psychotropic substance. The officers of D.R.I., while inquiring into the matter, recorded statements of accused Nos.3, 4, 5 and 6 and, thereafter, all the other accused persons under Section 67 of the NDPS Act. It was revealed that the barrels containing tablets were brought from some place near Bulsar Industrial Estate and were to be exported by sea route from some place near Jafrabad in Saurashtra area. However, by the time the tablets were brought to Jafrabad, the situation changed and it was found not possible to export the tablets through that channel. It was then decided to transport the contraband consignment to Mangalore by road and to export therefrom. During this period, the barrels were preserved for some days in the Wadi of one Faridbawa, near Dholka and then in the Wadi of Virawala Bhimawala, near Junagadh. It was during the course of transport to Mangalore that the trucks were intercepted and contraband seized. It was found that the transaction was the outcome of a conspiracy hatched by the accused persons and others at Ahmedabad. The D.R.I., therefore, lodged complaint/complaints against the accused persons and, ultimately, they came to be tried by the learned Additional City Sessions Judge, Court No. 10, Ahmedabad, for offences punishable under Sections 21, 22 and 23 read with Section 29 of the NDPS Act and Section 120-B of the Indian Penal Code. 4. After considering the evidence led by the prosecution, the learned Additional City Sessions Judge came to a conclusion that the prosecution could successfully prove the charges against the accused persons for offence punishable under Section 22 read with Section 29 of the NDPS Act and Section 120-B of the Indian Penal Code and recorded their conviction. 4.1 All the accused persons came to be convicted for offence punishable under Section 29 of the NDPS Act and are sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh, in default, to undergo further imprisonment for a period of one year. 4.2 Accused Nos. 1, 3, 4, 5 and 6 came to be convicted for offence punishable under Section 22 of the NDPS Act and are sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh, in default, to undergo rigorous imprisonment for six months. 4.3 Accused Nos.9 and 10 came to be convicted under Section 22 of the NDPS Act and are sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.2 lakhs, in default, to undergo rigorous imprisonment for two years. 4.4 Accused Nos.2, 7 and 8 are convicted under Section 22 of the NDPS Act and are sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs. 5 lakhs, each, in default, to undergo rigorous Rs. 5 lakhs, in default, to undergo R.I. for three years. 4.5 It is against the said judgment and order that these appeals are preferred. 5. We have been taken through the record and proceedings of the Trial Court and the learned Advocates for the appellants have canvassed various points to support the appeals. They have also relied on various decisions of the Apex Court as well as High Courts to derive support for the contentions raised. 6. The judgment and order of the Trial Court is assailed mainly on following grounds :- A. There is non-compliance of mandatory requirements of Section 42(2), 55 and 57 of the NDPS Act. B. The prosecution evidence regarding sealing and seizure of the material and safe custody of the samples is not trust-worthy. C. Evidence in form of statements of accused persons recorded under Section 67 of the NDPS Act suffers from the defect of having been obtained under duress and compulsion. They cannot make the sole basis of conviction. The provisions contained in Section 67 of the NDPS Act is only an empowering provision so far as the officers are concerned. The statements could not have been considered by Trial Court in light of the provisions contained in Section 24 of the Evidence Act and the constitutional guarantee of Article 20 (3) of the Constitution of India. D. The Search and Seizure Panchnama is not reliable as the manner in which the Panchnama is drawn makes it prone to tampering and renders it doubtful. E. The quality of the investigation is very poor. The investigation cannot be considered as independent, unbiased or fair. There is no probing on source of supply or place of manufacture of mandrax. The persons involved in the racket are not prosecuted. Independent evidence, though available, has not been collected. The appellants are falsely implicated. F. The evidence of the prosecution mainly is in form of statements of the accused under Section 67 of the NDPS Act. Even if those statements are accepted at the face value, they do not indicate any material to show that the accused persons had conscious possession or knowledge about the transhipment of the psychotropic substance-mandrax. They, therefore, cannot be convicted under the NDPS Act. At the most, knowledge can be attributed for transport of some illegal material. G. The charge against the appellants and the findings are contrary to each other. 7. It was contended that there is non-compliance of Section 42 (2) of the NDPS Act. In this regard, it was contended that, although the prosecution has tried to show that there was compliance of Section 42(2) of the NDPS Act by placing on record Ex.72, which is the information received and forwarded to the immediate superior of the receiving officers of D.R.I., the evidence of the prosecution is contradictory and does not inspire confidence. The officers come out with different versions. Whether the information was received on telephone or personally from the informant and whether it was reduced into writing is not clearly established because one officer comes out with a case that it was written down in hands, whereas Ex.72 is a typed version and, therefore, the case of the prosecution regarding compliance of Section 42(2) is doubtful. 7.1 It was contended that there is non-compliance of Section 55 of the NDPS Act. It was contended that there is no evidence regarding safe custody of the muddamal samples during the period after seizure and sending of the muddamal to the FSL. All that is stated by the officer is that it was with him, but where had he kept it, whether it was kept in lock and key and whether it was properly sealed or not is not stated. It is contended that the evidence has come to the effect that the store room was not used and, therefore, the mandatory requirement of Section 55 is not complied with. 7.2 Section 57 of the NDPS Act requires that, on seizure and arrest, superior officer is required to be informed within 48 hours. It was contended that this requirement has been held to be mandatory by the Apex Court. There is no evidence to indicate its compliance. An attempt was made to show compliance of Section 57 by producing a communication at Mark 58/44, but the Trial Court has not permitted that document to be taken on record as it was not coming from proper custody. It was contended that, even if it is exhibited, it does not comply with the requirements of Section 57 of the NDPS Act, as it speaks of only the seizure. There is total non-compliance so far as reporting of arrest is concerned. The accused persons have been arrested on various dates and no report in respect of their arrest has been sent to the immediate official superior and, therefore, there is non-compliance of Section 57 of the NDPS Act. 7.3 It was contended that the evidence regarding seizure and sealing of the muddamal is doubtful. The procedure followed for sealing is such that tampering cannot be ruled out. Slips containing signatures of the Panch witnesses were not properly fixed to the samples and the seal was not applied in a manner which would rule out the possibility of tampering of samples at the hands of the officers. It was contended that one sample from each of the barrel taken would make 44 sample packets and one sample of oil from drums from each of the trucks was taken and that would make in all 46 samples. It is the case emerging from the evidence of D.R.I. Officer, Patel, that four packets were received by him through Mr. Dimri for being delivered to the F.S.L. The F.S.L. receipt and the report speaks of 46 samples. This contradiction is not explained by the prosecution. 7.4 It was contended that the statements under Section 67 of the NDPS Act which form major part of the evidence and which have been relied upon by the Trial Court for recording conviction suffers from various defects. It was contended that the statements are not voluntary and free statements. They are obtained under threat and duress. The accused persons were kept under prolonged illegal detention although an attempt is made to show that they were obtained by serving summons on various dates. In such state of psychological pressure and tension, repeated statements were recorded till they gave inculpatory statements. The statements are, therefore, not voluntary. It was also contended that the statements are retracted by the accused persons subsequently. Some of them have even complained of having meted out with physical and mental torture, which would show that they were not voluntary. 7.4.1 It was also contended that the statements under Section 67 of the NDPS Act could not have been relied upon as they would be hit by the constitutional guarantee envisaged under sub-article (3) of Article 22 of the Constitution and also by protection provided by Section 24 of the Evidence Act. The statements are recorded after some of the accused assumed the character of an accused or after some of them have been shown as accused in the complaint or in the summons served on them. 7.4.2 It was contended that, in each of the statements recorded under Section 67 of the NDPS Act, it is specifically written that the accused persons were given to understand that they are bound to give correct information to the interrogating officer and, if they give incorrect information, they can be prosecuted under the Indian Penal Code. It was contended that this itself is a threat because, unlike Section 108 of the Customs Act, Section 67 does not contain any provision which requires a person to give correct statement or which indicates that the inquiry assumes the character of a judicial inquiry. 7.5 It was further contended that the Panchnama under which the material was seized cannot be relied upon because although the Panchnama was started at the place where the trucks were intercepted on the highway and after finishing the work at that place, trucks were taken to Jamnagar office of D.R.I. No signature of the Panch witness is taken, at that stage. It is also contended that the evidence of the Panch witness indicates that he was in the D.R.I. office while the drums were opened and samples were drawn in the compound of the D.R.I. office at Jamnagar. Differently put, the sampling process was conducted in the compound of the D.R.I. office whereas the Panch witnesses were sitting in the office room. The entire proceedings were, therefore, in absence of Panch witnesses. 7.6 The quality of investigation was seriously assailed on behalf of the appellants. It was contended that the prosecution has not prosecuted the persons found to be involved in the racket. Faridbava is one of such persons in whose Wadi the contraband was concealed. It was further contended that the D.R.I. officers have not even attempted to make any probe into the source of supply of the material, no attempt is made to know where the drums were manufactured or the drug was manufactured and no attempt is made to collect independent evidence though it was available in form of diesel bills, statement of pump owner, the register of the hotel where the accused persons had stayed under fake names, etc. It was also contended that the statements of the D.R.I. officers, who were party to the watch, search and seizure, were not recorded and, therefore, prejudice is caused to the accused persons as they were not aware as to what the officer is going to depose against them. It was, therefore, contended that the investigation is of a very poor quality and it cannot be considered as independent, unbiased or fair. 7.7 It was contended that the accused persons cannot be said to have conscious possession of the mandrax tablets. Even if the statements under Section 67 of the NDPS Act are accepted at the face value, it was contended that the statements do not reveal anything to show that the accused persons were aware of the contents of the drums. All that emerges from the statement is that, they had felt that they were transporting something against the law and, therefore, they could not have been convicted for offence punishable under the NDPS Act. 7.8 It was contended that, as per the case against the appellants, the entire transaction had 'Dubai Connection' and was the result of conspiracy with Haji Ismail of Dubai. There is no evidence in that regard. The person from Dubai is not prosecuted. The conviction for conspiracy is, therefore, bad in law. 7.9 A large number of decisions were relied upon by the learned Advocates for the appellants in support of their various contentions, which would be discussed during the course of discussion of the contentions raised before this Court. 8. The appeals have been vehemently opposed to by learned Additional Central Government Standing Counsel appearing for the D.R.I. Countering the contentions raised by the appellants, it was submitted that, so far as compliance of Section 42(2) is concerned, exhibit 72, if read, would clearly show that the intelligence gathered was gathered and developed by the D.R.I. Zonal unit and it was immediately made over to the Assistant Director by Mr. Bakarawala and Mr. Wellington on 8.4.1994 itself. It was received by the superior, as can be