1 Cri.Appeal No.539/05 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO. 539 OF 2005 1 Shri Rajsingh Aahada, Aged about 24 years, Occ: Nil, Residing at Nandle Village, Taluka: Dungarpur, Rajasthan 2 Shri Yugal Kishore Vaishnav Aged above 29 years, Occ: Teacher, Resident of Rov, Tal: Aaspur, Near Bus Stand, Dist. Dungarpur, Rajasthan (At present in Yeroda Central Prison) ...Appellants. v. 1 Shri T.S.K. Murthy Inspector Customs (P), PMC Building, Hirabaug, Tilak Road, Pune 411 002 2 Union of India 3 The State of Maharashtra ...Respondents. Ms Ashwini A. Takalkar i/by Shri Nitin P. Deshpande, advs. for the Appellants. Ms S.V.Gajare, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 17, 2010 2 Cri.Appeal No.539/05 ORAL JUDGMENT: 1 Appellants, who are the original accused nos.1 and 2, have preferred this appeal challenging the judgment and order passed by the learned Special Judge, Pune in N.D.P.S. Sessions Case No.5 of 1998 whereby the accused persons were convicted for the offences punishable under Sections 17 and 29 of the Narcotic Drugs and Psychotropic Substances Act (In brief ‘N.D.P.S. Act’) and were sentenced to undergo R.I. for ten years and to pay a fine of Rs.1 lac each and in default to undergo further R.I. for one year. 2 To state in brief, prosecution case is that the complainant T.S.K. Murthy, Inspector in Customs Department dealing with the prevention of offences under the N.D.P.S. Act and posted at Pune got information on 6.12.1997 at about 9 p.m., that two persons namely Yugal Kishore and Rajsingh, aged about 20-25 years, of Taluka: Aaspur, District: Dungarpur in Rajasthan would be coming near Roshani Petrol Pump on Blue Diamond Hotel road between 11.30 p.m., of 6.12.1997 to 2 a.m., of 7.12.1997 with 500 gms of Heroin. He was also informed that Yugal Kishore would be having muffler around his neck while Rajsingh would be wearing green coloured jacket. Said information was 3 Cri.Appeal No.539/05 reduced to writing by Inspector Murthy. He prepared information report in DRI-I format and submitted the said information report alongwith the copy of the written information to Mr. Borges, the Superintendent of Customs, Pune at about 9.30 p.m., on the same date. The Superintendent issued certain instructions about the necessary action. Inspector Murthy and his colleague Inspector Joji Joseph collected office brass seal, sealing material, normal balance, small balance and weights, drug identification kit and other required stationery. At about 10.30 p.m., Inspector Murthy reached near Roshani Petrol Pump with two persons to act as panch witnesses. He introduced himself and his companion officers to the panchas and also apprised them about the information received. The material in possession of the officers and staff of the Customs Department was also shown to the panchas. Thereafter they were on watch in or around Roshani Petrol Pump. At about 1 O’ clock on 7.12.1997, two persons came from Blue Diamond Hotel Side and stopped under the pimpal tree opposite Roshani Petrol Pump. Their appearance resembled with the information received by the Inspector Murthy. Therefore, the Customs Officers alongwith the panchas approached and surrounded both the accused persons and disclosed their identity to the accused persons. One of the persons, who 4 Cri.Appeal No.539/05 was wearing green jacket, is the accused no.1 and he disclosed his name as Rajsingh residing at Nandle Village, District: Dungarpur, Rajasthan. Another person, who was wearing muffler, was accused no.2 Yugal Kishore Vaishnav. He disclosed that he was resident of Aaspur, Dist. Dungarpur, Rajasthan. Inspector Murthy apprised both the accused persons about information received by him and his intention to take search of the accused persons. He also informed them about their right to be searched before any Magistrate or a Gazetted Officer as per the provisions of Section 50 of the N.D.P.S. Act. However, both the accused persons waived that right and volunteered for their personal search by the officers of the raiding party in presence of the panchas. Thereafter, firstly, personal search of the accused no.2 Yugal Kishore was taken but no objectionable article was found with him. After that personal search of the accused no.1 Rajsingh was taken and it was found that a plastic carry bag wrapped in rubber band was tucked inside his pant at the backside and it was covered by his green jacket. On enquiry , the accused No.1 Rajsingh admitted that the said bag contained Heroin but according to him, it belongs to the accused no.2 Jugal Kishore. On opening that plastic bag, a polythene packet containing brown colour powder like substance was found. That polythene was wrapped with 5 Cri.Appeal No.539/05 rubber band and covered by newspaper. Accused no.2 also admitted that the said powder was Heroin and it belonged to him. He also admitted that he had given it to the accused no.1 Rajsingh for concealing in his pant. Small quantity of brown powder was tested with the help of testing kit and result was positive for Heroin. Then the Heroin in the said packet was weighed and it was found to be 500 gms. Out of the same, two samples of 5 gms. each were drawn in two separate plastic packets. Each of them was stappled and then placed in separate green colour envelope. Both these envelopes were marked ‘B’ and ‘C’. Remaining quantity of Heroin contained in the polythene packet was heat sealed and wrapped with polythene sheet and Rajasthan Patrika was kept in plastic packate and then it was placed in green colour envelope marked ‘A’. It was also duly closed and heat sealed. Each of these three packets were labelled with signatures of the panchas, accused nos.1 and 2 and Inspector Murthy. About whole of this proceeding, panchanama was drawn at the spot near Roshani Petrol Pump in presence of the two panch witnesses and both the accused. Contents of the panchanama were read over to the panchas and their signatures were obtained on each of the pages of the panchanama. Inspector Murthy also signed the same. The contents of the panchanama were also read over to the accused and copy 6 Cri.Appeal No.539/05 of the same was given to each of them, who acknowledged receipt of the same in writing. Each of them also put signature and date on the same. This proceeding was completed at 3.00 a.m. After that Inspector Murthy and Inspector Joseph left the spot alongwith both the accused persons and seized contraband and reached the Customs office at about 3.30 a.m. Thereafter statements of both the accused were separately recorded under Section 67 of the N.D.P.S. Act. Thereafter on 7.12.1997 at about 12 hours both the accused persons were arrested and produced before the J.M.F.C. who remanded them to the judicial custody. Inspector Murthy deposited heroin in the packet marked ‘A’ as well as sample packet marked ‘C’ in the Central godown of the Customs on the same day. On 8.12.1997 , he sent the sample packet marked ‘B’ alongwith the test memo and other relevant documents to the chemical analyser, Pune through sepoy S.T.Valu. C.A.Report dated 31st January, 1998 was received confirming that the sample was heroin. After receipt of the C.A.Report, Inspector Murthy filed the complaint against both the accused under Section 17, 21 and 29 of the N.D.P.S. Act and alternatively under the provisions of Bombay Prohibition Act. 3 The learned Special Judge framed the charges against both the accused under Sections 17 and 29 alongwith the charges for the 7 Cri.Appeal No.539/05 Bombay Prohibition Act. Both the accused pleaded not guilty. 4 During the trial, on behalf of the prosecution, in all seven witnesses were examined and several documents were placed on record. After hearing the parties, the learned trial Court convicted both the accused persons for the offences punishable under Sections 17 and 29 of the N.D.P.S. Act and awarded sentence as stated above. 5 Ms. Ashwini Takalkar the learned counsel for the accused persons vehemently contended that the prosecution case suffered from several drawbacks, loopholes, manipulations and non-compliance of certain mandatory provisions of the N.D.P.S. Act. On the other hand, the learned APP strongly supported the impugned judgment of conviction and sentence and contended that evidence led by the prosecution was sufficient to prove the offence beyond reasonable doubt against both the accused. It will be useful to deal with the objections to the prosecution evidence raised by the learned counsel for the accused as and when relevant part of the evidence will be dealt with in this judgment. 6 P.W.3 T.S.K.Murthy was Inspector in Customs (Preventive) Narcotic Cell at Pune during 1993 and 1999. His evidence reveals that on 6.12.1997 at about 8.00 p.m., he was at his house. At that time, one informant contacted him on phone at his residence to give information 8 Cri.Appeal No.539/05 about the narcotic drugs. According to the Inspector Murthy, he asked the said informant to come to his office at Tilak Road at about 8.30 p.m. He immediately contacted P.W.6 Inspector Joji Joseph, who was his colleague in the Customs Department and asked him to come to his office at about 8.30 p.m. He also informed Mr. Borges, the Superintendent of the Customs on telephone and asked him to come to the office of Customs at about 9.30 p.m. As per the evidence of P.W.3 Inspector Murthy, he reached his office at Tilak Nagar Road at about 8.45 p.m., and Inspector Joji Joseph also reached there at about the same time. P.W.3 Inspector Murthy recorded the information given by the informant in his own handwriting. The informant also gave description as well as names of the concerned two persons, who were likely to come with 500 gms. of heroin. Information was recorded at about 9.00 p.m. in duplicate and it was signed by Inspector Murthy and Inspector Joji Joseph. Information was also signed by the concerned informant. He deposed that he kept the original information in one sealed envelope and also prepared information report in DRI-I form, as per the instructions given by the Customs Department. He submitted copy of the written information, sealed envelope containing original information and information report in DRI-I form to the Superintendent Borges, who read 9 Cri.Appeal No.539/05 those documents and approved action to be taken for the purpose of nabbing and seizure of the contraband, Exhibit 71 was proved to be the original information and Exhibit 72 was envelope in which that information was kept. He also proved Ex.73 under which informant was given reward for giving this information leading to the seizure of narcotic drugs. His evidence also shows that after approval of the line of the action by the Superintendent Borges, he had taken drug identification kit, seal, sealing material, balance, normal balance with weights and other stationary. At about 10 p.m., he left his office in a Government vehicle alongwith inspector Joji Joseph as well as driver of the jeep. His evidence also shows that at about 10.30 p.m. they reached near Roshani Petrol Pump. At 10.45 p.m., two panchas namely, Suresh Lohar and Karnalsingh Krishna were called to act as panch witnesses. Identity of the officers was disclosed to them. Information report and the purpose to call them was explained to them. Thereafter, this raiding party continued surveillance near the Roshani Petrol Pump. 7 Evidence of Inspector Murthy also reveals that on 7.12.1997 at about 1 a.m., he saw two persons coming from Blue Diamond Hotel, who stopped near the pimpal tree opposite Roshani Petrol Pump. Their description and clothes tallied with the description given by the 10 Cri.Appeal No.539/05 informant and, therefore, raiding party immediately approached them. Officers disclosed their identity and enquired about their names. The person, having muffler around his neck, gave his name as Jugal Kishore, 24 years M.Com., Aspur, Dungarpur. He is accused no.2. Another person wearing green jacket disclosed his name to be Rajsingh resident of Aaspur, Dungarpur aged about 19 years studied upto 12th standard. He is accused no.1. His evidence also shows that both of them were informed about the information received. He also told them that under Section 50 of the N.D.P.S. Act, they had the right of being searched in presence of gazetted officer or Magistrate. However, they waived that right and volunteered for their personal search by the officers of the raiding party. After that firstly personal search of the accused no.2 Jugal Kishore was taken but no contraband was seized from him. Thereafter, personal search of the accused no.1 Rajsingh was taken. Under the green jacket a plastic bag wrapped with rubber band was found tucked inside his pant from the backside,. On enquiry, accused Rajsingh told that the said bag contained heroin and belonged to Jugal Kishore, accused no.2. Thereafter, carry bag was opened and inside the carry bag, covered by Rajasthan Patrika newspaper, there was polythene sheet, in which one polythene packet was found. That polythene packet contained brown 11 Cri.Appeal No.539/05 coloured powder substance. Accused no.1 Rajsingh as well as accused no.2 Jugal Kishore confirmed that the said substance was heroin. Accused no.2 Jugal Kishore also admitted that he had given said packet to Rajsingh for concealing inside his pant. 8 Evidence of Inspector Murthy shows that thereafter small quantity of the powder found in that polythene packet was tested with the testing kit and results were positive for heroin. Whole of the powder found in that polythene pack weighed 500 grams, out of which two samples of 5 grams each were taken separately. Each sample was put in a polythene pouch, which was stappled and each of the said pouch was kept inside separate green coloured envelope. Each of the said envelopes was sealed with the sealing wax and was signed by Inspector Murthy, both the panchas as well as both the accused persons. These two sample packets were marked ‘B’ and ‘C’. The polythene packet containing remaining quantity of Heroin was sealed and it was kept alongwith the newspaper and the plastic bag in a green colour envelope marked ‘A’. Said envelope was also concealed with the sealing wax and it was signed by Inspector Murthy and both the panchas and both the accused. About whole of this proceeding, panchanama Ex.53 was prepared and signed by Inspector Murthy and both the panch witnesses. Copies of the said 12 Cri.Appeal No.539/05 panchanama were given to the accused and they also acknowledged the same by putting their signatures and date on the same . P.W.1 Suresh Lohar did not support the prosecution and was declared hostile. P.W.2 Karnalsingh, who was another panch witness fully supported the prosecution. P.W. 6 Inspector Joji Joseph also supported the prosecution case broadly. Evidence of Inspector Murthy also shows that statements of the accused no.1 Rajsingh and accused no.2 Jugal Kishore were recorded under Section 67 vide Ex.79 and Ex.80 after reaching Customs office wherein they gave details as to how heroin was procured by the accused no.2 for supply to some person at Pune and that he had assured to pay Rs.10,000/- to the accused no.1 Rajsingh for keeping the packet containing heroin with him. Their statements show that both of them travelled together from Aaspur and reached Pune on 6.12.1997 where finally they were caught by Customs officers near Roshani Petrol Pump. 9 Evidence of P.W.3 Inspector Murthy shows that on 7.12.1997, he produced sealed packet marked ‘A’ containing heroin weighing 490 grams and the sample packet in envelope marked ‘C’ in sealed condition before P.W.5 Inspector Sudam Bhor, who was custodian of the Customs godown during the relevant period. P.W.5 Inspector Sudam Bhor corroborated this part of the evidence and deposed that 13 Cri.Appeal No.539/05 these two sealed packets marked ‘A’ and ‘C’ were deposited with him as per the deposition memo Ex. 81, which bears signatures of Inspector Murthy as well as Inspector Joseph. He took entry in the muddemal register at Sr.No.7. Ex.102 is proved to be certified xerox copy of the entry no.7. Evidence of P.W.3 Murthy and that of P.W.4 Shivaji Tanaji Valu, who was sepoy in the Customs Department, shows that Shivaji was present on duty as Customs Officer, on 8.12.1997 between 6 a.m. to 2 p.m. On that day Inspector Murthy handed over one sealed packet marked ‘C’ and four papers for handing over the same to the C.A. Shivaji deposed that on the same day, he handed over the sealed green colour envelope alongwith the other papers to the clerk in the office of the C.A., who received the property. Ex.85 is the test memo and it is signed by the Inspector Murthy. It also bears signature and stamp from the office of the chemical analyser with date as 8th December , 1997. It is accompanied with the covering letter Ex.86. It also bears signature of Inspector Murthy as well as endorsement with the stamp of C.A. This shows that both these documents, Ex.85 and 86 were received by C.A. office. On both these documents, there is mark of seal of the Central Excise and Customs Department, Pune. Ex.90 is the C.A. Report , which shows that the covering letter with one sealed envelope, bearing crime 14 Cri.Appeal No.539/05 no.5/1997 with the test memo no.9 of 1997 dated 8.12.1997 was received in the C.A. Office through Shri S.L.Valve on 8.12.1997. Report also shows that during the analysis Heroin (diacetylmorphine) was detected in the Ex.1 alongwith other opium alkaloids and falls within the meaning of Section 2(xvi) of the N.D.P.S. Act, 1985, which means it was opium derivative also known as heroin. 10 On perusal of the evidence on the record, it is clear that, inspector Murthy immediately after receiving the information recorded it as per the procedure laid down by the Customs Department. As per the evidence, information was recorded in duplicate. Original was kept in sealed packet. Information report was also prepared in DRI-I form and the duplicate copy of the information, DRI-I format and sealed packet containing original information were submitted to his superior officer Superintendent Borges almost immediately after getting that information and thus, provisions of Sections 42(1) and 42(2) of the N.D.P.S. Act were strictly followed. On behalf of the accused, attempt was made to show that though in the complaint, it was stated that information was received at about 9 p.m. , Inspector Murthy deposed before the Court that at about 8 p.m. informant had contacted him on his telephone to give information about the narcotic drugs. It was contended that as per his evidence, 15 Cri.Appeal No.539/05 information was actually recorded at 9 pm. In my considered opinion, discrepancy of the time of a few minutes here and there does not make much difference particularly in view of the fact that Customs office was situated about 15-16 kms away from the house of this officer. It appears that 6.12.1997 was holiday and at about 8 p.m. , when he received telephonic message from informant, he was at his house. Therefore, expecting that he would take half an hour to reach his office , he asked informant as well as inspector Joji Joseph to come to the office at about 8.30 pm. He must have left his house within a few minutes and he reached office at about 8.45 p.m. Said Joji Joseph also reached there at about same time. Thereafter, information was recorded and the recording was completed at about 9 p.m. Therefore, in paragraph 2 of the complaint, it is mentioned that the information was received at 9 p.m., I do not find any material discrepancy in the evidence. Complete information was actually received between 8.45 to 9.00 p.m., and recording was completed at 9 p.m. Evidence also goes to prove that the said information was recorded and it was signed by the informant and later on, informant was also duly rewarded, for which receipt was passed because the information was found to be correct and on that basis 500 gms., heroin was seized from the accused persons. 16 Cri.Appeal No.539/05 11 It was further contended by the learned counsel for the accused that the provisions of Section 50, which are mandatory by nature, were not fully complied. There is no dispute that provisions of Section 50 are mandatory as laid down by the Supreme Court in the State of Punjab v. Baldev Singh (1999) 6 SCC 172 wherein it was held that empowered officer has to inform the suspect about his right that if he desires to be search in presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. If the empowered officer fails to comply with the requirement of Section 50, it will be fatal to the prosecution. That authority has been reiterated in several other judgments of the Supreme Court since then. Union of India v. Bal Mukund and Others (2009) 12 SCC 161 is one of the latest authorities in which the view taken by the Supreme Court in Baldev Singh (Supra) was reiterated. The learned counsel pointed out that P.W.2 Karnalsingh, who was panch witness, deposed that after disclosing identity to the said two persons, those persons were asked whether their personal search would be taken before the Magistrate or Gazetted Officer as required under Section 50 of the N.D.P.S. Act. While P.W.3 Inspector Murthy deposed that he had informed both the accused that under Section 50 of the N.D.P.S. Act, they had right of being searched before any gazetted 17 Cri.Appeal No.539/05 officer or the Magistrate, however, they waived that offer and volunteered that their personal search could be taken by the officers of the raiding party. In paragraph 6 of the complaint it was stated that complainant apprised both the accused no.1 Rajsingh and the accused no.2 Jugal Kishore about the said information and he also disclosed to them that they have the right to be searched before the Magistrate or Gazetted Officer under Section 50 of the N.D.P.S. Act, however, the accused nos.1 and 2 waived the said offer and volunteered for the personal search before the panchas and the officers of the raiding party. Even though words used by the P.W.2 Karnal Singh panch witness and Inspector Murthy may be slightly different but the meaning and substance of their words is same and it is in tune with the contents of the paragraph 6 of the complaint. Therefore, in my considered opinion, the provisions of Section 50 in this respect were fully complied and no objection could be taken to the prosecution case on the ground of non- compliance of the provisions of Section 50. 12 The learned counsel for the accused also contended that while P.W.1 Suresh Lohar did not support the prosecution, P.W.2 Karnalsingh appears to be under the influence of the Customs officers because as per his admission, he and P.W.6 Inspector Joji Joseph know 18 Cri.Appeal No.539/05 each other since childhood as they belong to same place. In my considered opinion, this cannot be a reason to hold that Karnalsingh was under the influence of the Customs Officer and that he was not independent person. According to his evidence, on 6.12.1997 at 10.45 p.m., he was returning on his bicycle from Blue Diamond Hotel and when he reached near Roshani Petrol Pump, two officers called him and, thereafter, he disclosed their identity and requested him to be panch witness. He also gave other details in the cross-examination. He admitted that at the time of recording the panchanama, he was residing at 48/1, Mitta Nagar, Kondhwa, Pune but later on, he changed his address and was residing at Wadgaon Budruk, Taluka: Haveli, when his evidence was recorded. In the cross-examination he stated that he had never informed Inspector Murthy about change in his address nor he had informed his changed address to his neighbouring people but he stated that he had informed about changed address to the Superintendent of Customs. Therefore, he could be summoned from the place where he was residing at that time. This panch witness was cross-examined at a great length about several minor and inconsequential aspects also.