1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.428 OF 2002 Firoz Hassanali Rupani. ) at present confined in Yervada ) Central Prison, Pune, previously) residing at Pearl Harbour Bld. ) Tulsiwadi, Mazgaon, Mumbai. ) ..Appellant. (org.Accd.No.3) V/s. 1. Intelligence Officer Narcotics) Control Bureau Mumbai, Zonal ) Unit, Exchange Building, ) Ballard Pier, ) Mumbai 400 032. ) ) 2. The State of Maharashtra. ) ..Respondents. WITH CRIMINAL APPEAL NO.371 OF 2002 Abdul Rehman Alifaarah ) Somalian National(at present ) in Judicial Custody at Yerwada ) Central Prison) r/at Villa Ali ) Farah, P.O.Box No.600, National ) Road, Mogdishu -Somalia. ) ..Appellant ) (Org.Accd.No.2) V/s. 1. Intelligence Officer, ) Narcotics Control Bureau ) Mumbai Zonal Unit, Mumbai ) ) 2. The State of Maharashtra ) ..Respondents. WITH CRIMINAL APPEAL NO.372 OF 2002 Abdulla Mohammed Shirre ) @ Daulat, Somalian National ) (at present in Judicial custody ) at Yerwada Central Prison r/o ) Hobyo, Dist.Goal Kaayo, ) 2 Somalia. ) ..Appellant. (org.Accd.No.1) V/s. 1. Intelligence Officer, ) Narcotics Control Bureau ) Mumbai Zonal Unit, Mumbai. ) ) 2. The State of Maharashtra. ) ..Respondents. Mr.K.M.Sanghani, for appellant in Cr. Appeal No.428/2002. Mr.Ayaz Khan, for appellant in Cr.Appeal No.371/2002. Mr.S.V.Kotwal, for appellant in Cr.Appeal No.372/2002. Mr. D.A.Nalawade, P.P. for Union of India. Mr. Y.A.Shinde, APP for State. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE: APRIL 2, 2007. DATE: APRIL 2, 2007. DATE: APRIL 2, 2007. P.C.: P.C.: P.C.: 1. This common Judgment will dispose of all the three appeals. The appellants before this Court were indicted for offence under section 29 r/w 8(c) and 21; and section 21 r/w 8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as the N.D.P.S.Act for the sake of brevity). The Accused No.1 and 2 were additionally charged for offence under section 27A r/w 21 and 8(c) of N.D.P.S.Act. The trial Court by the impugned Judgment and Order has found all the three accused guilty of offence punishable under section 8(c) r/w 3 29 and Section 8(c) r/w 27(A) of N.D.P.S. Act. The accused No.1 is additionally found guilty of offence under section 8(c) r/w 21 of N.D.P.S. Act. The Accused Nos. 1 to 3 have been ordered to undergo rigorous imprisonment for a period of 10 years each and to pay fine of Rs.One Lakh each, in default to undergo rigorous imprisonment for a period of three months. As the accused No.1 is additionally found guilty of the offence punishable under Section 8(c) r/w 21 of N.D.P.S.Act, is directed to undergo further rigorous imprisonment for a period of 10 years and to pay fine of Rs.One Lakh, in default to undergo rigorous imprisonment for a period of three months. The trial Court has however, ordered that both the substantive sentences against Accused No.1 to run concurrently. 2. Briefly stated, the prosecution case is that on 16th June, 1999 an Intelligence report was received by NCB Officer J.S.Dubey(P.W.1) that on 17th June, 1999 Accused No.3 was likely to deliver heroin powder to foreign nationals (described as Negro persons) at given time and place. The said officer is said to have taken direction from his superiors in relation to the said intelligence report. It is stated that the superiors approved the follow-up 4 action of arranging a drag-net near the appointed place and time. Accordingly, the NCB Officers along with two panch witnesses arranged a drag-net near the Mazgaon Garden at around 7.00 a.m. on 17th June, 1999. It was witnessed by the said NCB officials and panchas that first one person with beard arrived on the spot having one plastic carry bag in his hand. Thereafter, two foreign nationals (accused Nos. 1 and 2) arrived on the scene. They walked upto the said beard person, who was holding a plastic bag in his hand, who is none other than accused No.3. It was then noticed that all these persons started discussing something. Thereafter, the accused No.3 was seen to be handing over the plastic bag to accused No.1. The officials, who were in hiding, were signalled to surround the accused persons. When the officials started moving forward, accused No.3 appears to have recognised the NCB officers and shouted "NCB... run". Soon thereafter, all the three accused started running away from the scene. The accused No.3 was chased by P.S.Nambudari (P.W.3). However, the said accused managed to escape and disappeared in the by-lanes. The other officials however, were able to grab the accused Nos.1 and 2 on the spot. At that time, the accused No.1 was holding the said plastic bag. The Officials, in the presence 5 of panchas, enquired with the said accused persons about the contents of the bag. The accused in turn disclosed that it contained contraband item heroin. On that, the officials expressed desire to take search of the bag. The accused persons were told that the search can be taken in the presence of gazetted officer or Magistrate. However, the accused Nos. 1 and 2 (persons who were accosted on the spot), gave no objection for being searched by the NCB officials. The accused also offered search of the bag. On taking search of the accused Nos.1 and 2 as also of the plastic bag in possession of accused No.1, in the presence of panchas, officials found that the bag contained three packets. Initially, one packet was opened and small portion from the bulk therein was taken out. Field test was immediately conducted on the said sample with the help of the apparatus, which was carried by the officials to the spot. The test was done in the presence of the panchas. The test reported positive of heroin. Therefore, the other two packets were also unpacked and field test was carried out on the small portion taken out from the bulk therein, which tested positive. The Officials thereafter, in the presence of panchas weighed the small portion from each packet to be taken as sample for being forwarded to the 6 Chemical Analysers of Dy.C.C.New Custom House and Forensic Science Laboratory. Accordingly, 5 grams of substance from each packet was taken out and kept as sample in small polythene bag, which were duly sealed and kept in envelopes. The envelopes were then sealed and initials of the officials, panchas as well as the accused, were taken. Panchanama regarding search and seizure was completed on the spot. 3. Thereafter, police party alongwith accused No.1 and 2 moved to the police station. On reaching police station, summons was issued to the accused Nos. 1 and 2 to appear and make disclosure for the purpose of enquiry. Consequent thereto, the statements of both the accused, accused No.1 and 2 came to be recorded. It is the prosecution’s case that the statements so recorded are voluntary statements made under section 67 of the NDPS Act, where the accused have confessed about their involvement in the offence in question. As mentioned earlier the accused No.3 escaped from the scene. He was not traceable for some time. In the circumstances, investigation in so far as accused No.1 and 2 progressed and on completion whereof charge-sheet came to be filed against the said accused. 7 4. As the accused Nos. 1 and 2 pleaded not guilty, the trial commenced. While recording of evidence was in progress on 9th April, 2001, accused No.3 was arrested in connection with some other criminal case of same nature. He was produced before the Court for remand in that case. At that time, application was made by the investigating Officer to give custody of the accused No.3, which was required for the present case. Before producing accused No.3 in Court, it appears that his statement(Ex.43), purported to be under section 67 of the Act was recorded, wherein he has confessed about his involvement in the present case. Be that as it may, the trial in the present case was deferred. Moreover, pursuant to the order passed on application Exh. 30, the Investigating Officer took over custody of accused No.3 in relation to the present case. Investigation as against accused No.3 was commenced after his arrest and on completion thereof, further charge-sheet came to be filed indicting the accused No.3 of the alleged offence. The trial Court proceeded with the trial on the basis of both the said charge-sheets. The trial Court has recorded that the parties agreed for that course and the trial was continued by recalling the witnesses already 8 examined. Thereafter, the trial was concluded by examining all the prosecution witnesses. 5. On the basis of the evidence, which has come on record, the trial Court proceeded to record finding of guilt against each of the accused- Accused No.1 to 3 and convicted and sentenced them for the offence as mentioned in the opening part of the Judgment. The trial Court has considered the plea of the accused about violation of section 42 of the Act, which came to be negatived. The trial Court then discussed the evidence of the prosecution witnesses and proceeded to hold that the same was truthful and reliable. It found that the evidence would establish the events as unfolded, as spoken by the witnesses. It has held that the evidence of prosecution witnesses was fully corroborated. The trial Court has then adverted to the plea of the defence about non-compliance of section 50 of the Act and has negatived the same. The trial Court has noticed that the main criticism of the defence in relation to the evidence of P.W.2 was to suggest that the witness must have visited the scene of offence for the first time on 2nd April, 2001 and had no occasion to visit that spot earlier, much less on the date of incident on 17th June, 1999. The trial Court has also dealt 9 with the criticism of the defence regarding description in Exh.20 panchanama, Exh. 21 and 22. It has then considered the argument of the defence that before taking personal search, both the accused were jointly appraised about their rights, which was not in accordance with the legal requirement. The Court however has taken the view that from the evidence it appears that both the accused were appraised about their rights independently. The trial Court has then adverted to the argument of the defence that the officials before laying drag-net did not think it necessary to make arrangement to keep any gazetted officer or Magistrate present, if search before them was required to be taken, depending on the stand of the accused. The trial Court has then discussed the evidence of P.W.2 and P.W.4 alongwith the documentary evidence Exh. 20, 21 and 22 and 108 to answer the material issue in favour of the prosecution. The trial Court has also noticed the argument of the defence that in the panchanama Exh. 20, there is no endorsement that the same was read over and explained to panch(P.W.4). It is however, found that there was such endorsement at the last page and no mention thereof on the previous pages-1 to 6 would affect the genuineness of that position. The trial Court has also referred to the argument of 10 the defence that it was obligatory on the officials to inform the accused before starting recording of panchnama to remain silent. The trial Court has also considered the challenge of the defence to the panch witness(P.W.4) and found that the case made out by the defence in the cross-examination does not affect the truthfulness of the said witness. It found that the evidence of P.W.4 was natural and truthful. The trial Court has then considered the defence case about non-arrest of the accused No.3. The next argument of the defence dealt with by the trial Court is that the accused No.1 and 2 had no knowledge of English. The assertion of accused Nos. 1 and 2 that they had no knowledge about English, that plea has been negatived relying on the intrinsic material, which has come on record to show that the said accused persons were familiar with English language and in fact interacted in that language. The trial Court has also adverted to the evidence of P.W.8 and 9, which would indicate the movement of accused No.1 during the relevant period. The trial Court has also noted that the accused No.2 had arrived in Mumbai obviously in connection with the deal, which eventually did not materialise and was exposed by the officials. The trial Court has then adverted to the argument of accused No.2 that the statement 11 purportedly recorded under section 67 of the Act was of no avail and in any case was not binding on this accused as he had retracted the same. The argument regarding retraction as well as no knowledge of English put forth on behalf of the accused has been negatived by the trial Court on the finding that it is an after-thought and false plea. The trial Court has then proceeded to consider the argument of the defence that the Chemical Analyser’s report dated Exh. 26 and 27 will be of no avail as material details are not mentioned therein. Besides, on account of non-examination of the Chemical Analyser, such report cannot be looked into. Even that argument has been negatived by the trial Court. Taking totality of the evidence on record, the trial Court recorded finding of guilt against the respective accused and ordered them to suffer R.I. of 10 years and fine of Rs.One Lakh each on different counts. This decision is subject matter of challenge in the present appeals. 6. During the hearing of these appeals, counsel appearing for accused No.2 invited my attention to the pending Criminal Application No. 3870 of 2003. He invited order on the said application. By the said application, it was prayed that the prosecution 12 be directed to produce percentage report in respect of the present case. Further direction was prayed that the Chemical Examiner i.e. DYCC and FSL be examined and it would be just, proper and necessary to record their evidence in exercise of powers under section 391 of Cr.P.C. in the fact situation of this case. Counsel appearing for all parties were heard on that application and after considering all the relevant aspects, the said application was disposed of vide order dated 8th November, 2006. In terms of the said order, the Chemical Analyser was summoned to appear as witness. For, it was noticed that the trial of this case was pending on 2nd October, 2001, the provisions of amended provisions of 1985 Act would be attracted in view of the exposition of the Supreme Court in the case of Basheer @ N.P.Basheer Basheer @ N.P.Basheer Basheer @ N.P.Basheer V/s. State of Kerala V/s. State of Kerala V/s. State of Kerala reported in (2004) 3 SCC 609. (2004) 3 SCC 609. (2004) 3 SCC 609. Accordingly, one Jayant Purshottam Kulkarni, Assistant Director in Forensic Science Laboratory, State of Maharashtra, Kalina appeared and deposed before this Court giving particulars about the procedure adopted in testing the samples and the outcome of the tests so conducted on the samples sent to that laboratory pertaining to the present case. This witness has been extensively cross-examined. The evidence of this witness was recorded without the 13 personal presence of the accused as the accused had waived that right which fact is recorded in the order dated 8th November, 2006. I shall deal with that evidence a little later. Suffice it to observe that besides the report of the forensic Science Laboratory, which was already exhibited during the trial, further evidence has been led before this court in the form of evidence of P.W.11 as well as documents brought on record during his evidence, which have been separately marked as respective exhibits. 7. The thrust of the argument canvassed on behalf of the accused before this Court was to first criticize the prosecution evidence in relation to the factum of raid. While doing so, truthfulness of the version of P.W.2 as well as P.W.4 who acted as panch was put in issue. Then the evidence regarding arrest of respective accused was criticized. The next criticism was regarding search and seizure of article and procedure observed by the officials. It was argued that search and seizure will have to be discarded as there was no independent evidence. The evidence of P.W.4 panch was untrustworthy. The next argument was in relation to the sample procedure adopted by the officials, that included sealing 14 procedure. Then the most debated argument was that the sample packets were tampered. In any case, the evidence would speak that there was possibility of tampering of samples. Besides, the sample, which was sealed, was not the same which was taken out from the bulk; and moreso, what was sealed (sample) was not the same packet sent to the Chemical Examiner. It was next contended that the bulk was not properly preserved and produced before the Court in time. The other debated issue on behalf of the defence is that, the Chemical Examiners’ reports were of no avail. On such report, contends learned counsel, the prosecution case cannot stand; as it was bereft of necessary details. It was then contended that even the evidence of Chemical Examiner(P.W.11), which has now come on record will be of no avail to the prosecution. It was then contended that there was variance in the result of field test conducted on the spot, which indicated substance Acetyl Morphine, whereas the Chemical Analyser has deciphered the sample as Diacetyl Morphine and this variance has remained unexplained, which was fatal. It is lastly contended that the statement of accused purportedly recorded under section 67 of the Act was of no avail. It does not take the colour of confession statement at all. In any case, the same was involuntary and 15 has been subsequently retracted, for which reason will be of no avail. This is the substance of the argument canvassed on behalf of the counsel for the accused to persuade this Court that the finding of guilt recorded against the appellants/accused cannot be sustained either on facts or in law. It is submitted that at any rate this was a case of giving benefit of doubt to the appellants. 8. On the other hand, the Public Prosecutor would contend that some error here or there committed by the trial Court cannot be the basis to overturn the finding of guilt as recorded against the appellants. According to him, in addition to the reasons recorded by the trial Court, there was tangible material to uphold the finding of guilt, on proper analysis of the prosecution evidence. In his submission, no interference is warranted with the final opinion recorded by the trial Court regarding finding of guilt against the appellants in relation to the offence in question. Counsel appearing for both the sides have relied on several decisions. I shall advert to those decisions at the appropriate places, while considering the stand of the parties in the context of the issues that will be discussed in this Judgment. 16 9. Accordingly, I shall now proceed to consider the prosecution evidence in relation to the events as unfolded. It is the prosecution case that prior intelligence report was received on 16th June, 1999 at around 19.00 hours from a reliable source- that one Firoz Rupani son of Hasan Ali(Accused No.3) was likely to deliver a substantive quantity nearly 3 kgs. of heroin to negro persons at the entrance of Mazgaon Garden at about 7.30 hours on 17th June, 1999. The information also disclosed that said Firoz has grown beard as of now and that in the past he was involved in a case booked by the NCB Mumbai. On receipt of this intelligence report, P.W.1- J.S.Dubey immediately submitted intelligence note to his superior officers. He first placed that report before Assistant Director Shri C.P.Vijayadharan. That officer took note thereof and put his signature and date of the same day. Thereafter, intelligence note was placed before the Zonal Director Mr.S.C.Rohotgi(P.W.10). Even Zonal Director (P.W.10) made endorsement and put his dated signature thereon. The note has been proved by P.W.1 and has been exhibited as Exh. 18. P.W.1 has spoken about the movement of the intelligence note prepared by him and the signatures of the respective superior officials 17 thereon have been identified by this witness. Besides, examining the P.W.1, prosecution also relied on evidence of P.W.10, who had the occasion to put his dated signature on the intelligence note Exh. 18. Although this witness has been cross-examined, his version has remained unshaken. Indeed, it was argued that there was no contemporaneous record to show as to the source from where the intelligence report was received by J.S.Dubey. Referring to subsection (2) of section 42 of the Act, it was contended that it is obligatory for the official to take down any information in writing to make note of such details. On plain language of section 42(2), all that the officer is obliged to comply is to send copy of such report to his immediate superior within 72 hours. In so far as that requirement is concerned, the same has been complied with in all respects, as can be seen from the evidence of P.W.1 and P.W.10 as well as the note at Exh. 18. Non-mention of the source of information of the intelligence note cannot be said to be non-compliance of any mandatory requirement. Besides, there is good reason for the practise of not mentioning the identity of the source of information in the intelligence report itself. For, the intelligence report was likely to be made part of record during 18 the trial, in which case the information provided therein may expose the resource person to avoidable risk. The identity of the informant or whistle-blower in such a serious crime, is required to be protected. Suffice it to observe that non-disclosure of the source of intelligence report received by P.W.1 cannot be said to be fatal to the prosecution case. 10. On receipt of the intelligence report, the Zonal Director called upon his subordinates Sanjay Gokhale(P.W.2), Prasanna S. Nambudari(P.W.3) to his cabin on 16th June, 1999 and told them to proceed. Both P.W.2 and P.W.3 have spoken about such instructions given by the Zonal Director. P.W.2 and 3 both were intelligence officer in NCB, Zonal office, Mumbai at the relevant time. In their evidence they have stated that as per the instructions of the Zonal director they reached at the spot at Mazgaon Garden at about 7 a.m. on 17th June, 1999. P.W.3 has stated that after waiting for 2-3 minutes his other colleagues arrived on the spot at around 7 a.m. P.W.2 Gokhale has stated that on reaching the spot he called independent persons available around that place to act as panchas. This fact is corroborated by P.W.3. One of the Panch 19 P.W.4 has also corroborated this position. All these witnesses P.W.2, 3 and 4 have consistently deposed that P.W.2 gave instructions to the members of the raiding team including panchas to spread out and watch for the beard person carrying plastic bag. It is stated that each of the member of the raiding party took position at different points and after waiting for some time, a beard person carrying sky-blue coloured bag arrived on the spot. He waited there for some time. Thereafter, two black persons of foreign origin arrived on the spot. Those foreign nationals talked to the beard person. Then the sky blue colour plastic bag was handed over by the beard person to one of the thinner and shorter amongst the two foreign nationals. Thereafter, signal was given to the raiding party to move towards these persons to grab them. As the team members progressed towards these persons, the beard person appears to have recognised the officers and shouted "NCB.. run". On that, all the three accused started running here