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.783 OF 2000 Nasir Dawood Ibrahim Shaikh @ Sahil Ibrahim Shaikh aged about 37 years r/at Flat No.201, 2nd Floor, Saroopi Godawari, Naya Nagar, Mira Road, Dist.Thane. ..Appellant. (at present in Judicial Custody)Org.Accd.No.1. V/s. 1. Narcotic Control Bureau Ballard Estate, Mumbai. 2. The State of Maharashtra. ..Respondents. Mr.S.B.Keshwani i/b. Shri Pradeep Hingorani, for Appellant. Mr.Prakash Thakur, Public Prosecutor for Union of India-Respondent No.1. Mr.Y.S.Shinde, APP for State-Respondent No.2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : OCTOBER 9, 2006. DATE : OCTOBER 9, 2006. DATE : OCTOBER 9, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This appeal takes exception to the Judgment and Order passed by the Special Judge(NDPS) Brihan Mumbai dated October 11, 2000 in NDPS Special Case No.59 of 1998. The appellant was named as accused No.1 alongwith one Ilyas Mohamed Ismail Shaikh and tried for offence punishable under section 29 r/w 21 and 23 and under section 8(c) r/w 21 and 29 and under section 8(c) r/w 23 and 29 of the NDPS Act. 2 According to the prosecution, one Jamil Khan was also engaged in unlawful activities alongwith the appellant, however, as he was untraceable the trial proceeded only against two accused. The prosecution examined 8 witnesses in support of its case. The accused did not examine any witness in their defence. On analysing the evidence on record, the trial Court proceeded to record finding of guilt only against the appellant/accused No.1 for offence punishable under section 23 r/w 21 of NDPS Act. The trial Court having accepted the prosecution case as against the appellant/accused No.1, proceeded to sentence the appellant to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.One Lakh, in default of payment of fine to undergo simple imprisonment for four months. This decision of the trial Court is the subject matter of challenge in the present appeal. The State has not challenged the finding of acquittal in favour of accused No.2. The limited controversy in the present appeal therefore, is whether the conclusion reached by the trial Court in recording finding of guilt against the appellant/accused No.1 alone can be sustained on facts and in law. 2. The prosecution case is that in the first week of June, 1997 Zonal Director, Narcotic Control 3 Bureau(N.C.B.), Mumbai received letters dated 23rd May, 1997 from Assistant Commissioner of Police, Anti Drug and Smuggling Unit, Port Louis, Mauritius intimating that they have seized 2 Kgs. and 771.8 grams. of heroin from a consignment exported from India. The consignment was sent in a container in the name of Mahmade Yousouff Soopun consisting of 57 packages, suspected to contain drugs, coming from Mumbai by sea on board vessel "Vishva Nandini" which had arrived at the harbour- Port Louis, Mauritius on 9th April, 1997. The said letter mentions that the consignment was placed under surveillance. On 23rd April, 1997, the said Mr. M.Y.Soopun, after completing the clearance formalities, called at the Associated Containers Service Ltd., at Marine Road, Port Louis to take delivery of the packages. In the presence of Police and the Customs and Excise Officers, Mr.M.Y.Soopun identified the 57 packages as being the consignment destined to him. The said letter also records that whilst verifying the packages, in presence of Mr.M.Y.Soopun, four of them were found to contain a large quantity of heroin powder, concealed in lady’s purses, in between the inner fabrics and the hard covers. It is also mentioned that the said Mr.M.Y.Soopun voluntarily disclosed that the consignment was sent by one Shaikh 4 Sahil Ibrahim(appellant/accused No.1), a resident of Mira Road, Bombay, having telephone No.8108040. Alongwith the said letter, the Assistant Commissioner of Police, Anti Drug & Smuggling Unit, Mauritius forwarded translated statement of Mr.M.Y.Soopun in English, as also certified copies of Certificate of Origin, the Mennon Chamber of Commerce, Report of the Chief Forensic Science Officer regarding examination of the drug found in the lady’s purses, list of movements from Passport & Immigration Office of Shaikh Sahil Ibrahim(appellant/accused No.1) to Mauritius and Soopun and photo-album containing ten photos of the drug and M.Y.Soopun. The said letter appeared to have been duly authenticated by the Consulate, Republic of Mauritius, as well as office of the High Commission of India at Port Louis. Enclosure sent alongwith the said letter however, did not contain signature of any Indian authorities from Mauritius. Acting on the basis of the said information and on receiving intelligence report that accused was available at Mira Road at his residence, Sadashiv Shankar Asawale(P.W.1), Intelligence Officer, N.C.B.,Mumbai visited the place at 8 a.m. He served the copy of the summons on appellant/acused No.1 under section 67 of NDPS Act calling upon him to remain present. Pursuant thereto, the 5 appellant/accused No.1 appeared in the office of N.C.B.,Mumbai on 15th November, 1997, when his statement came to be recorded by Abdul Jalil Shaikh(P.W.2),Intelligence officer, N.C.B.Mumbai. The said statement dated 15th November, 1997 as recorded is marked as Exh. 24. At the outset, it refers to the fact that the appellant was apprised that he had right to be silent and further, if he made any statement the same may be used against him as well as against any person. It mentions that the appellant after understanding the provisions of section 67 of NDPS Act voluntarily gave statement in question-answer format. The appellant himself wrote down the answer in his own hand writing and put his signature at the places where corrections were carried out and also at the end of every page of the Statement. In this Statement the appellant has stated that he was S.S.C. passed in English medium. After giving brief background about himself he has mentioned that he was engaged in the business of export of imitation jwellary, ladies garments, ladies purses, chappals etc. to Mauritius. He has stated that he was in that business since 1992. He also admitted that he did not have any export licence. He has then stated that initially he used to carry the goods alongwith him as his personal packages, but 6 started exporting on regular basis from 1995 by cargo through Continental Exports. He has disclosed the modalities, in which purchase orders were received by him. He has stated that he visited traders in Mauritius and collected orders personally or sometime over telephone. He has disclosed the name of the traders of Mauritius with whom he transacted business. Amongst other names he has mentioned the name of M.Y.Soopun. With regard to the procedure for export, he has disclosed that after he purchased material, he did primary packing and handed over those goods to the exporters(Continental Exports), who in turn did secondary packing of the said packets in his presence. He has also stated that as he did not have export licence, all export documents were prepared in the name of Continental Exports, Mumbai and that all invoices, Bill of Lading, Certificate of Origin, Bill of entry are prepared in the name of importers in Mauritius. He has then stated that he had only one importer in Mauritius viz. Mr.M.Y.Soopun, who in turn delivered the goods to the specified traders in Mauritius. Name of the said traders is given by him(appellant). He has also stated that he regularly visited Mauritius on number of occasions for collecting payments. On being shown the list of movements of his visit to Mauritius, the 7 appellants in his statement has accepted that the details of visit mentioned therein were true and correct. He has also indicated the name of travel agent through whom he used to book the air ticket. In his statement he has also revealed the mode of payment of air fare, as also of the goods purchased from different traders, to be exported. After this statement of appellant was recorded by P.W.2, the appellant was allowed to go home. The appellant was called for further enquiry on next day i.e. 16th November, 1997. Once again the Intelligence Officer(P.W.2) who recorded the statement of appellant under section 67 ensured that the appellant was apprised that he was not liable to make any incriminating statement and had right to be silent. Further, any incriminating statement made by him could be used against him as evidence. Notwithstanding that, the appellant gave voluntary statement as has been recorded by P.W.2, which is marked as Exh. 27. In this statement, he has stated that he had exported last consignment to Mauritius on 21st March, 1997 to Mr.M.Y.Soopun in Mauritius. The goods were exported under Invoice No.CE/104 dated 14th March, 1997. He has spelt out the goods, which were exported under the said invoice as plastic stand, ladies chappals, vollets, shaving kits, 8 pouches, plastic purses, foam purses, jute bags, religious books, cosmetics and imitation jewellery. The appellant was shown Invoice No.CE/104 dated 14/3/1997 as received duly authenticated by Mauritius Consulate and seal of Police Head Quarters, Port Louis, Mauritius. On perusing the said invoice, the appellant confirmed that the goods in the invoice were exported by him and were his goods exported to M.Y. Soopun in Mauritius. The appellant was then asked to give details from whom he has purchased the articles, which were exported. He has given details of the traders, from whom the articles were purchased. He disclosed that plastic purses (Ladies) were purchased from Plastic Cottage, Chakla Street, Mohd. Ali Road, Mumbai. The appellant was asked whether he would identify the plastic ladies purses exported by him, as shown in photograph. The appellant responded positively. The appellant was accordingly shown the photographs of the ladies purses and the boxes, in which the same were packed, in which contraband item was found in concealed position. The appellant accepted that the said purses were the same which were exported by him to Mauritius. The appellant also acknowledged that the brown powder seen in the photograph is heroine. He has accepted that he was aware that transacting in 9 the said drug is an offence. He has then stated that the heroine concealed in ladies purses was owned by his friend Jamil Khan. The said Jamil Khan had insisted upon the appellant to conceal the heroine in ladies purses, which were to be exported to Mauritius, for which the appellant would be rewarded by paying sum of Rs.Five Lakhs. The appellant accepted the said offer as he was under heavy debts. The appellant once again stated that he does primary packing of the goods before handing over the same for export to the Continental Exports. He has stated that the ladies purses wherein the heroine was concealed, primary packing and concealment was done by his friend Jamil Khan. Jamil Khan had taken the said purses to one Iliyas(accused No.2) Manager of United Lodge who was the friend of Jamil Khan. Both accused No.2 and Jamil Khan concealed the heroine in the purses and thereafter, delivered those ladies purses to the appellant a week before the shipment, i.e. on 14th March, 1997. The appellant however, has stated that he did not know quantity of Heroine that was concealed in the ladies purses as that was done by Jamil Khan and Iliyas. The appellant has also admitted that earlier to the consignment in question, two times, Jamil Khan and Iliyas had concealed heroine in ladies purses. The appellant 10 has then disclosed the mode in which he used to receive the payment after export of consignment of heroine to Mauritius. The appellant has also disclosed as to why the Jamil Khan and Iliyas did not go to Mauritius themselves. The appellant has also disclosed that the accused No.2 used to finance for getting heroine. In so far as connection with M.Y.Soopun, he has stated that he knew him since 1995. He met him in Mauritius. The appellant used to export M.Y.Soopun, which he had done 7-8 times in the past. The appellant has also accepted that he had contacted M.Y.Soopun on telephone and assured him that he was sending consignment in March, 1997, which items should be kept by him. The appellant has admitted that he had telephoned M.Y.Soopun twice on 27th April, 1997 for giving instructions about exported goods. The appellant also produced and handed over his passport to P.W.2 and he gave details about Jamil Khan and Iliyas. From the photographs, which were received from Mauritius, when pointed out to the appellant, he identified the photograph of M.Y.Soopun. The appellant has also explained as to why he was signing in two names and two signatures. The appellant has accepted that the statement, which was given by him and written down in his own hand writing was true and correct and was given without 11 any force, pressure or inducement. From the statement given on 16th November, 1997, as involvement of accused No.1 became amply clear, to connect him with the export of contraband drug in concealed form in ladies purses to M.Y. Soopun, the appellant came to be arrested at 17.00 hours. The appellant was granted police custody. During such custody, the appellant gave one more statement, which has been recorded by P.W.2, Exh. 35 on 19th November, 1997. In this statement, he has given details regarding the mode of purchasing the articles, which were to be exported. He has mentioned that the articles were purchased in cash and without insisting for bill, so as to save sales tax. In this statement, he has mentioned that M.Y. Soopun used to take clearance of exported consignment at Mauritius and give delivery of the goods to the specified traders. This job was done by M.Y. Soopun on getting 10% commission. The other details have been given in the statement such as the consumption of the drugs was for tourist in Mauritius. 3. After investigation was completed, complaint came to be filed before the Special Judge against the appellant/accused No.1 and other accused for offence punishable under N.D.P.S. Act. The accused pleaded 12 not guilty. The prosecution examined 8 witnesses and produced documentary evidence on record. The documents were received alongwith the letter dated 23rd May, 1997 from the Assistant Commissioner of Police, Mauritius. During the progress of the trial, the N.C.B.,Mumbai Zonal Unit received the set of documents of investigation from High Commission of India, Port Louis, Mauritius duly authenticated through Consulate of the Republic of Mauritius, which consisted of one album containing seven photographs, photocopy of Forensic Report FSL (C) 1332/97, copy of the statement of Mahmade Yousouff Soopun, list from Passport & Immigration office regarding movements of Shaikh Sahil Ibrahim to Mauritius, list from passport & immigration office regarding Y. Soopun to India and copies of Certificate of Origin, invoice, Bill of Entry, Bill of Lading, Delivery receipts from A.C.S., payment receipts. The said documents alongwith original letter dated 16th September, 1999 of the Consulate of Republic of Mauritius was requested to be taken on record and the documents to be read in evidence in the present case. The said application Exh. 53 was filed on 19th November, 1999. The trial Court by order dated 14th December, 1999 allowed the said application directing that the documents referred to in the said application are taken on 13 record and exhibited. The trial Court negatived the submission of the accused that the said documents were not duly authenticated or that inadmissible in evidence. On merits of the case, the trial Court referring to the oral evidence adduced by the prosecution held that there was sufficient material to indicate complicity of the appellant/accused No.1 in the commission of the offence. The trial Court has essentially found that the appellant was responsible for despatching the goods received by Yousuf Soopun in Mauritius, which contained contraband drugs in concealed form, which in turn was to be delivered to specified traders. The trial Court noted that the fact was clearly established and for that purpose the trial Court has considered evidence of P.W.1 and P.W.2, intelligence officers as well as evidence of P.W.6 and P.W.7 from whom the goods in question were purchased by the appellant, in which subsequently contraband drug was concealed and after doing primary packing thereto came to be handed over to the Continental Exports. The trial Court has also referred to the evidence of P.W.4, who was associated with Continental Exports to hold that his evidence established that the goods in question were received from the appellant with primary packing, to be exported to Yousuf Soopun in Mauritius. On 14 receipt of the said packets, after following necessary procedure, the same came to be exported in containers by Cargo. The trial Court has also relied upon the evidence of P.W.8 who was the Investigating Officer in the Criminal Case against Yousuf Soopun registered at Mauritius. He has spoken about the form of goods received in Mauritius and disclosure made by Yousuf Soopun that the same were sent in his name from Mumbai by the Appellant. Besides, the trial Court has also relied on the statement of the appellant under section 67 of the Act to record finding of guilt against the appellant. 4. The Judgment of the trial Court has been assailed on behalf of the accused No.1 essentially on the argument that the material relied upon by the trial Court was inadmissible in evidence. The set of documents received from the Assistant Commissioner of Police alongwith his letter dated 23rd May, 1997 were not duly authenticated copies and therefore, inadmissible in evidence. It was then argued that the Chemical Analyser’s report relied upon by the prosecution, issued under the signature of Chemical Analyser at Mauritius also was of no avail. In the first place, the same was not duly authenticated. Besides, the same does not indicate the method 15 adopted for analysing the drugs and the nature of test carried out to reach at the conclusion noted in the report. It was then contended that non-production of contraband drug before the court in the present trial or for that matter the receptacles, in which the same was concealed also having not been produced, the same was fatal to the prosecution case. It is then contended that the statement of appellant/accused No.1 recorded under section 67 of NDPS Act was also of no avail to the prosecution, as the same was retracted and has been obtained under duress and force, which was evident from the material on record. On the above argument, it is contended that this appeal should succeed and the appellant deserves to be acquitted, in any case, entitled to benefit of doubt. 5. The learned Public Prosecutor on the other hand, has supported the reasons and conclusion reached by the trial Court and would argue that there is no infirmity in the ultimate decision of the trial Court. 6. Having considered the rival submissions, the question that arises before this Court is whether the approach of the trial Court in reaching the 16 conclusion is improper. The trial Court has analysed the oral evidence of the prosecution witnesses extensively. It has also made reference to the documentary evidence on record, which would support the prosecution case and at the end placed reliance on the statement of the appellant/accused No.1 under section 67 of the Act to conclude that the prosecution has established the involvement of the appellant in commission of the crime by producing the evidence beyond reasonable doubt. In my Judgment, I would prefer to analyse the material on record, first taking into account the statement of the appellant/accused No.1 recorded by P.W.2 under section 67 of the Act. According to the appellant, the statement so recorded was obviously not voluntary. The same has been retracted by the appellant at a later point of time. In such a case the accused cannot be convicted solely on the basis of such statement. Besides, there is clinching evidence on record to show that the statement of the appellant was not voluntary. 7. I shall first advert to the established legal position. The Supreme Court in the case of K.I.Pavunny V/s. Assistant Collector(HQ), Central K.I.Pavunny V/s. Assistant Collector(HQ), Central K.I.Pavunny V/s. Assistant Collector(HQ), Central Excise Collectorate, Cochin, [(1997) 3 Supreme Court Excise Collectorate, Cochin, [(1997) 3 Supreme Court Excise Collectorate, Cochin, [(1997) 3 Supreme Court 17 Cases 721] Cases 721] Cases 721] was dealing with similar contention. The argument before the Apex Court was whether the retracted confession statement is admissible in evidence and could form basis for conviction and whether retracted confessional statement requires corroboration on material particulars from independent evidence. The Apex Court after adverting to series of decisions, in the first place, noted the distinction between the statement made before the police officer and the one made before the customs officer. After noting the said distinction, it has followed the earlier decision of the Supreme Court, taking the view that even though Custom Officers have been invested with many of the powers, which an officer in charge of a police station exercises while investigating a cognizable offence, they do not become police officer within the meaning of Section 25 of the Evidence Act and so the confessional statement made by the accused before the Custom Officer would be admissible against them. Applying the same analogy to the statement made before the intelligence officer (PW-2), by the appellant/accused No.1, under section 67 of the Act, same would be admissible in evidence against the appellant/accused No.1. The Apex Court has noted that statement made under section 67 by a person before his arrest in 18 connection with the criminal case will be admissible against him, as he is not a person accused within the meaning of section 24 of the Evidence Act at the relevant time. In the present case, it is seen from the evidence that the appellant came to be arrested on 16th November, 1997 at 17.00 hours. Before his arrest, the appellant gave two statements to P.W.2 in his own handwriting. First such statement was given on 15th November, 1997 (Exh. 24); and the second statement was given on 16th November, 1997 Exh. 27 at 11.30 a.m.. It is only on giving those two statements, as the intelligence officer (P.W.2) was convinced about the complicity of the appellant in the commission of the crime, he proceeded to arrest the appellant on 16th November, 1997 at 17.00 hours. Therefore, the statements recorded under section 67(Exh. 24) on 15/11/1997 and (Exh. 27) on 16/11/97 before arrest of the appellant will be admissible in evidence against the appellant. In K.I.Pavunny’s K.I.Pavunny’s K.I.Pavunny’s case (Supra) case (Supra) case (Supra) the Apex Court has observed that the statements would be inadmissible in criminal trial, if it is proved that they were caused by inducement, threat or promise. In other words, merely because the statement has been retracted subsequently, by itself cannot be the basis to discard the same; but it is only when, it is positively found by the court 19 in the criminal trial that such statement was caused by inducement, threat or promise, the same cannot be used against the accused. The Apex Court has also considered in paragraph-19 of the said decision that such statement can form the sole basis for conviction or not. It is noted that if the statement was found to be voluntary statement given by the accused and is true one, that can form the sole basis of conviction. It will be apposite to reproduce paragraph-20, which has restated the legal position, which reads as under: "20. The question then is whether the retracted confessional statement requires corroboration from any other independent evidence. It is seen that the evidence in this case consists of the confessional statement, the recovery panchanama and the testimony of PWs 2,3 and 5. It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond