IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 193 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE A.M.KAPADIA and Hon'ble MR.JUSTICE H.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? -------------------------------------------------------------- HUSEN BHENU MALAD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 193 of 1997 MR G RAMAKRISHNAN appointed by Legal Aid Committee for appellant Nos. 1-5 MR BD DESAI APP for Respondent No. 1 MR ASIM J PANDYA for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE A.M.KAPADIA and MR.JUSTICE H.H.MEHTA Date of decision: 26/02/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE A.M.KAPADIA) 1. This appeal which is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 ('the Code' for short) read with Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) through jail, is directed against a judgment and order dated February 4, 1997 rendered by Special Judge, Kachchh at Bhuj, in Special Case No. 122 of 1994 by which appellants/original accused Nos.1 to 5 ('the accused' for short) have been convicted of the offences under Section 20 (b) (ii) read with Section 29 of the NDPS Act and sentenced to undergo R.I. for 15 years and fine of Rs.1 lakh, i.d., S.I. for two years whereas A-1 and A-4 have also been convicted of the offences punishable under Section 23 read with Section 29 of the NDPS Act and sentenced to undergo R.I. for 15 years and fine of Rs. 1 lakh i.d., S.I. for two years. It is also ordered by the learned Special Judge that both the sentences awarded to A-1 and A-4 to run concurrently and all the five accused are given the benefit of set-off. 2. Facts of the case have been detailed in the judgment of the learned Special Judge and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are that: 2.1. One Yashwantsinh Rupsinh (P.W.1), Officer Commanding, BSF Water Wing, in company of Narpatram, S.I., A.K. Devnath, Head Constable, Engine Driver Mandal, Arjun Singh and other officers, on 20.7.1994, while patrolling creek area of Koteshwar, at about 4.30 P.M., saw a wooden boat having engine, in a suspicious condition. When the boat of B.S.F. was seen by the persons fishing in the wooden boat, they tried to run away with their boat. However, since the BSF personnel had a high-speed boat they reached at the wooden boat within 5/6 minutes. The said wooden boat was stopped at the creek by the BSF officers and the persons who were found in the boat were directed to be alighted from it. In the said boat there were five persons. Upon preliminary inquiry they stated that they were Pakistani citizens and they were doing fishing illegally in the water of Indian territory. In the meanwhile, because of low tide, water level receded and the wooden boat in which they were fishing was kept stationary there. A night halt was done there near the creek and all of them were placed under the surveillance of the guards. 2.2. On the next day, i.e., 21.7.1994, P.W.1 and other BSF officers reached Koteshwar Jetty around 9 A.M. and alighted there from the boat alongwith them. During the inquiry made by P.W.1 with them, he informed them that if they give information regarding smuggling or some illegal activities which may be known to them, they would be released. Thereupon they told that if they were to be released they would show something to the BSF personnel. Thereupon, Husen Malad, A-1 was taken in the BSF Boat with PW 1 and they went in creek area. As per information given by A-1 the boat was taken to Vaniya Vadi creek area where he showed Charas secreted in mud which was recovered. Thereafter around 5 P.M. PW -1 and other BSF officers came back to BSF Camp at Koteshwar with charas. In the BSF camp P.W.1 instructed his subordinate Inspector Tulshasing to inform the fact of recovery of Charas to the Inspector of Customs. Accordingly, this fact was informed to the Customs Department and pursuant thereto Sanjay Baviskar, Customs Inspector and N.C. Bildani, Customs Superintendent came alongwith panch witnesses. Muddamal Charas was thereafter seized after following due procedure and after making panchnama in presence of Panchas. During the aforesaid procedure, police from Narayan Sarovar Police Station reached there and they were handed over to Narayan Sarovar police on 21.7.1994 itself. 2.3. Initially, during the pendency of investigation into this case, complaint for violation of provisions of the Foreigners Act, 1946 and the Indian Passport Regulations Act was filed against the accused. Thereafter Customs Officer made an application on 6.8.1994 before learned Chief Judicial Magistrate, Kachchh at Bhuj for custody of the accused for the purpose of inquiry which was granted. Pursuant to the order passed by the learned Chief Judicial Magistrate, Kachchh at Bhuj, the Customs Department was given the custody of the accused on 7.8.1994. Statements of the accused under Section 108 of the Customs Act and under Section 67 of the NDPS Act were recorded on the same day. Second statement of A-1 was recorded on 8.8.1994 and his third statement was recorded on 9.8.1994. Second statement of A-2 was recorded on 9.8.1994. No further statement of other accused was recorded. 2.4. On 8.8.1994 formal arrest of the accused was made for violation of the provisions of the NDPS Act by the Customs Department and arrest report was submitted to the Assistant Commissioner of Customs on 8.8.1994 itself. During the investigation, report of Forensic Science Laboratory ('FSL' or short) on the sample which was collected in presence of panchas and sent for analysis was received which revealed that the contraband article was Charas. On the basis of the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act it was divulged that all the accused have committed offence under the provisions of the NDPS Act and, therefore, a written complaint for the offences punishable under Sections 20, 23 and 30 of the NDPS Act came to be filed by K.S. Joshi, the then Superintendent of Customs, Kachchh at Bhuj on behalf of the Union of India, in the Court of Special Judge (Sessions Judge), Kachchh at Bhuj which was registered as Special Case No. 122 of 1994. Alongwith the complaint, list of documents like Panchnama, seizure report under Section 57 of the NDPS Act, statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act, arrest report, inventory report and FSL report, was also produced. 2.5. The learned Special Judge, on the basis of the averments and allegations made in the complaint, framed charge against all the accused at Ex.9 for commission of the offences punishable under Sections 20 (b) (ii), 23, 29 and 30 of the NDPS Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. 2.6. In order to bring home the charge framed against the accused, prosecution has examined following witnesses and relied upon their oral testimonies: P.W.1 - Yashwantsinh Rupsinh - Officer Commanding, BSF, Water Wing, Bhuj- Ex.21. P.W.2 - Sava Vela Maheshwari - Ex.25. P.W.3 - Mulji Khimji Joshi - Panch No.2 - Ex. 27. P.W.4 - Narendra Chandumal, Superintendent of Customs, Kandla - Ex. 28. 2.7. Prosecution also placed reliance on the following documents to prove the culpability of the accused: Sr. Particulars of documents Ex. No. No. --------------------------------------------------------- 1. Copy of letter F.No.Elops/Seizure/KOT/ 94 dated 21.7.1994 of 141 BN BSF addressed to the Customs Officer, Narayan Sarovar, Kutch. 29 2. Original seizure panchnama prepared in presence of panch witness Sava Vela Maheshwari and Mulji Khimji Maheshwari before N.C. Bildani, Superintendent of Customs. 30 3. Copy of letter F.No.VII/10-1/KOT/ 94/702 of Inspector of Customs, Koteshwar addressed to Incharge Police Station, Narayan Sarovar dated 22.7.1994. 31 4. Original report of seizure u/s. 57 of NDPS Act submitted by N.C. Bildani, Superintendent of Customs, Gadhuli to the Assistant Collector of Customs, Bhuj dated 22.7.1994. 32 5. Copy of letter F.No.LIB/BA/2665/94 of DSP, Bhuj addressed to the Assistant Collector, Customs, Bhuj dated 6.8.1994. 35 6. Copy of application in the Court of CJM, Bhuj (K) bearing F.No.VIII/17-8/ LEGAL/94 for the transfer of custody of five Pak nationals, dated 6.8.1994. 36 7. Copy of letter F.No. VIII/17-8/LEGAL/ 94 addressed to Superintendent of Sub Jail, Nakhatrana of Superintendent of Customs, Bhuj dated 6.8.1994 37 8. Original statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 108 of the Customs Act and under section 67 of NDPS Act dated 7.8.1994. 38 9. Original statement of Siddique Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of the NDPS Act and 108 of the Customs Act dated 7.8.1994. 39 10. Original statement of Aechar Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of the Customs Act dated 7.8.1994. 40 11. Original statement of Khemu Alaya Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of the Customs Act dated 7.8.1994. 42 12. Original statement of Hanif Ishaque Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 7.8.1994. 41 13. Original further statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 8.8.1994. 43 14. Original further statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 9.8.1994. 44 15. Original further statement of Siddique Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 9.8.1994. 45 16. Report of arrest under Section 57 of NDPS Act to the Assistant Collector, Customs, Bhuj by A.R.Chavda, Inspector of Customs, Gadhuli dated 8.8.1994. 46 17. Copy of NCB 1 (Test Report) sent to FSL, Ahmedabad for testing dated 22.7.1994, alongwith the forwarding letter and its dated receipt 33 18. Inventory in original in respect of seized charas prepared before Executive Magistrate, Bhuj as per the provisions of NDPS Act dated 12.9.1994. 47 19. Original test report received from FSL, Ahmedabad alongwith letter addressed to the Superintendent of Customs, RCP, Gadhuli dated 4.10.94. 34 2.8. After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the depositions of the witnesses. Thereafter further statements of the accused were recorded under Section 313 of the Code. In further statement also they denied the prosecution case in toto and reiterated that they are innocent, they have not committed any offence, they are Pakistani citizens doing fishing and without interrogation after beating them their signatures were obtained on blank papers and they have been falsely entrapped in the alleged commission of offences under the NDPS Act. They did not lead any evidence in defence nor they examined themselves on oath. 2.9. On appreciation, evaluation and analysis of the evidence adduced by the prosecution, the learned Judge held that the prosecution has proved beyond doubt that all the accused who are Pakistani citizens have illegally under the guise of fishing entered into the water of Indian Territory, near Savla Pir, as per the information supplied by A-1 about Charas, large quantity of Charas weighing 265 Kgs. valued at Rs.1.28 crores was taken out from the place shown by him, and therefore, all the accused were connected with the said illegal trafficking of Charas by aiding each other and thereby they have committed offences under Section 20 (b) (ii) read with Section 29 of the NDPS Act whereas A-1 and A-4 have also committed offences under Section 23 read with Section 29 of the NDPS Act and resultantly the learned Judge has convicted and sentenced the accused to which reference is made in earlier paragraphs of this judgment, which has given rise to the present appeal. 3. Mr. G. Ramakrishnan, learned advocate who is appointed by Legal Aid Committee to render assistance to the accused, contended that the prosecution has not been able to establish the involvement and indulgence of the accused in the alleged offence beyond reasonable doubt and the learned Judge has also committed grave error in outrightly believing the so-called evidence of the prosecution which was not tenable in the eye of law. It is emphasised by him that when it is undoubtedly the fact to reckon with that the mandatory as well as directory provisions of law have all been flouted with, no credence can be given to such evidence laid therein by the prosecution as also to the findings of the learned Judge. It is also emphasized by him that there has been clear flouting of the mandatory provisions as well as directory provisions contained under Sections 42 (1) and (2), 55 and 57 of the NDPS Act which in the resultant would render the conviction unsustainable. What is asserted by him is that various provisions of the Code, though directory in nature, have not been complied with and noncompliance of the same would invite adverse inference against the prosecution case. It is also highlighted by him that even several provisions contained in the Constitution of India as well as in Customs Act have not been complied with. According to him, it, therefore, goes to show that means of justice have been taken for granted. 4. In support of the aforesaid contention, Mr. G. Ramakrishnan, learned advocate for the accused, elaborately highlighted certain aspects which, according to him, are serious infirmities to the prosecution case which can be catalogued as under: (i) The complaint is a delayed one as there was delay of 4 months and 10 days in filing it, which has not been explained. (ii) The complainant has not been examined before the trial court. (iii) The nature of involvement of the accused with the contraband article is not spelt out in clear terms in the complaint. (iv) The investigating officer is also the complainant and hence the said complaint and trial thereto are not maintainable. (v) The complaint otherwise could have been filed by the BSF personnel who are also empowered with extended powers of the Police under the Code as also envisaged under the BSF Law Manual. Therefore, there was no requirement to involve the Superintendent of Customs and the said Department. (vi) The alleged offence is pertaining to one under the NDPS Act and not the one for evasion of Customs Duty which ought to be under the Customs Act, 1962. (vii) The complainant is only a hearsay witness to the alleged incident. (viii) The complainant has not followed the mandatory provisions of the NDPS Act. (ix) The entire complaint failed to establish even prima facie the aspect of conscious possession of the accused with the contraband article. (x) Mere knowledge about the contraband article does not establish the fact of guilt of conscious possession. (xi) P.W.1 was not present at the place of incident or during the interrogation of the accused. (xii) So-called information supplied by A-1 ought to have been reduced into writing by BSF personnel as Section 42 of the NDPS Act is applicable and on the facts of the case Section 43 cannot be made applicable. (xiii) BSF personnel have no right to entrust the muddamal to the Customs Department. (xiv) Doubt is raised about the authenticity of the sample taken from the contraband article whether it is the same substance which was sent to FSL for analysis from the original contraband article Charas. (xv) Panch witnesses have turned hostile and it has not come on record who has weighed the muddamal while sample was taken for sending to FSL. According to Panch witnesses presence of the accused at the time of drawing sample and preparing Panchnama is not established. (xvi) Statements of the accused recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act are hit by Article 20 (3) of the Constitution of India as they were in judicial custody. (xvii) P.W.4 is a hearsay witness who ought not have gone to the creek at Vaniya Vadi nor he was present at the time of seizure or preparing panchnama and drawing sample. 5. Pointing out the aforesaid infirmities which, according to the learned advocate, are serious in nature and fatal to the prosecution case, it is contended that the accused are innocent and not in any way involved in the alleged incident and there was noncompliance of various provisions of the NDPS Act and, therefore, serious doubt is raised on the prosecution case and the so-called statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act during the arrest and at the time of their being in judicial custody, would not be sufficient as conclusive piece of evidence to sustain conviction as there has also to be other corroborative and independent piece of evidence to establish the authenticity and credibility of those so-called confessional statements and hence the entire prosecution case fails as there is no substratum in the prosecution case and thus the order of conviction and sentence passed by the trial court against the accused deserves to be quashed and set aside by allowing this appeal. He, therefore, urged to allow this appeal and thereby to acquit the accused. 6. To buttress the aforesaid submission, the learned advocate also relied upon following decisions of the Supreme Court: (i) Revatram Ratanchand Thakur v. State of Goa, III (1995) CCR 217 (DB) Bombay High Court, 217. (ii) Koluttumottil Razak v. State of Kerala, 2000 SCC (Cri) 829. (iii) Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513. (iv) State of Punjab v. Balbir Singh, (1994) 3 SCC 299. (v) Roy V.D. v. State of Kerala, (2000) 8 SCC 590. 7. In answer to these submissions, Mr. Asim Pandya, learned counsel who appears on behalf of the Union of India, has supported the impugned judgment and order throughout. According to him, no infirmity is found in the judgment and order rendered by the learned trial Judge as he has given cogent reasons for coming to the conclusion that the accused are guilty of the offences with which they are charged. It is also asserted by him that the prosecution has proved beyond doubt the involvement and indulgence of the accused in the alleged offences as large quantity of contraband article - Charas was recovered at their instance. What is asserted by him is that there is a positive evidence that all the accused have illegally entered into the water of Indian territory for the purpose of illegal trafficking of the contraband article - Charas which they were to export from the Indian territory to Pakistan territory, which was concealed in Indian territory. Not only that in past also they exported 225 Kgs., of Charas from the same place but on that particular day, i.e., 20.7.1994 they came to the water of Indian territory to export Charas from Vaniya Vadi creek to Pakistan. Therefore they had knowledge about the contraband article and since they were to lift the said contraband article it is proved that they were in conscious possession of the same. It is also emphasised by him that the prosecution evidence is consistent in this regard. Panchnama was prepared in the presence of Panchas. They have supported the procedure carried out by the Customs Department while taking sample which was sent to FSL for analysis. It is true that the Panchas have not supported the prosecution case so far as presence of accused is concerned. However, on this ground the entire evidence of the panchas cannot be treated as effaced or washed off the record altogether as part of their evidence which is otherwise acceptable can be acted upon. It is also stressed by the learned counsel that all the accused are consistent in their statement recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act and they have given detailed background of their families which otherwise would have been impossible if they have not voluntarily given their statement. It is emphasised by the learned counsel that while the statement of the accused was recorded they were not in police custody but were in judicial custody in connection with the offences for violation of the provisions of the Foreigners Act and Indian Passport Regulations Act. At that time neither complaint was lodged against the accused in connection with the offences under the NDPS Act, nor they were arrested in connection therewith, therefore, much credence can be given to the said statement as the same got corroboration from other independent witnesses like P.W.1, P.W.4 as well as panch witnesses P.W.2 and P.W.3. While criticizing the submission made by the learned advocate for the accused with regard to the so-called infirmities it is contended by the learned counsel for the Union of India that those infirmities which have been pointed out by the learned advocate for the accused cannot be termed as infirmities. Besides this it is also pointed out that the statutory and mandatory requirements of the provisions of the NDPS Act have been fully complied with. Lastly it is contended that the accused had never retracted their statements at any point of time inspite of the fact that several opportunities were given to them to retract from it. A-1 has only for the first time stated in his further statement that his statement was recorded under compulsion, duress by beating him and it was not voluntarily made by him. 8. On the aforesaid premises, the learned counsel for respondent No.2 submitted that there is no infirmity in the impugned judgment and order. The learned trial Judge has also considered all the aspects and reached to the correct conclusion as on the facts and in the circumstances of the case no other conclusion was possible except the one reached by the learned trial Judge in connection with the guilt of the accused. In this view of the matter, the appeal lacks merit and deserves to be dismissed. He, therefore, urged to dismiss the appeal and thereby to confirm the impugned judgment and order of conviction and sentence of the accused passed by the learned trial Judge. 9. To buttress the aforesaid submissions, learned counsel has relied upon following authorities: (i) Sayar Puri v. State of Rajasthan, (1998) 7 SCC 441. (ii) Aslambhai Ibrahimbhai Memon and another v. The State of Gujarat, 1990 Cri.LJ 1787. (iii) Ravishankar Bhagwatiprasad Mishra v. State of Gujarat, 2000 (1) GLR 137. (iv) Raghubhai Gandabhai Bharwad v. State, judgment dated 5/6-2-2002 delivered by this Court (Coram: J.M. Panchal & JR. Vora, JJ.) in Criminal Appeal No.12 of 2002. (v) Ramji Duda Makwana v. The State of Maharashtra, 1994 Cri.LJ 1987. (vi) K.C. Jaya Kumar v. The State, 1997 Cri.LJ 10. (vii) Utpal Mishra, Air Customs Officer, IGI Airport v. Nicelai Christensen, 1997 (4) Crimes 108. (viii) Satyanarayan Das v. State of Orissa, 1999 Cri.LJ 974. (ix) Karnail Singh v. State of Rajasthan, 2000 Cri.LJ 4635. (x) K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721. (xi) Bipinbhai