IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 5765 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- PREMPRATAPSINGH SISODIYA Versus A C PATEL -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 5765 of 1999 MR BK DAVE for Petitioners No. 1-2 MR ANANT S DAVE for Respondent No. 1 MR VIPUL PANCHOLI, APP for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 20/03/2002 CAV JUDGEMENT 1. Heard ld. Senior Counsel Mr. M.R. Barot with Mr. B.Kumar, ld. Senior Counsel from Chennai with Mr. B.K. Dave, ld. counsel for the petitioner, ld. Addl. Standing Counsel Mr. Anant.S.Dave for Union of India complainant department and ld. APP Mr. Pancholi for the State. 2. This petition is filed under Section 482 of CrPC R/w Section 300 of CrPC whereby the petitioners-accused have prayed to quash and set aside the proceedings and trial of Special Criminal Case No. 70/95 pending in the Court of ld. Sessions Judge, Valsad at Navsari. 3. The petitioners have raised important question about the scope of exercise of inherent powers of this Court under Section 482 of CrPC and the application of Section 300 of CrPC, which inter alia, bars second trial of the accused already prosecuted for the same or similar offences bases on the same or similar evidence and resulted into acquittal of the accused which is in force and whether on the same and similar facts or evidence, accused could be permitted to be tried again. If such trial is permitted, whether such permission would violate the Scheme of Section 300 of CrPC ? It is further stated by the petitioners that effect of directions of the Apex Court specifically given protecting the interest of the accused, whether needs to be and how and in which manner should be implemented. The question of double jeopardy has also been raised by the petitioners.During the course of submissions, ld. Senior Counsel Mr. Barot has also raised the question whether the proceedings pending in the Sessions District of Valsad at Navsari, if allowed, would result into abuse of process of law and would result into miscarriage of justice. For short, it is argued that looking to the facts and circumstances of the case available on record, the aforesaid criminal proceedings require to be quashed and set aside. 4.(i) To substantiate the prayer advanced by the petitioners and contentions raised, the petitioners have stated facts in detail in para-2 of the petition. According to the petitioners, on 12.12.1994, 7 cylinders of material containing mandrax tablets were seized from Patel Roadways, Tuticorin, Tamil Nadu. The present petitioners were arrested by the officers of Customs, Tuticorin, Tamil Nadu with regard to the mandrax tablets seized. During the course of investigation and interrogation of the persons apprehended, Customs Tuticorin flashed an information to the Commissioner of Customs, Surat. The petitioners were questioned by the custom authorities , Tuticorin and after arrest, they were remanded to custody. After completion of investigation, chargesheet was filed in the Court of ld. Special Judge (NDPS) Madurai, Tamil Nadu and a criminal case bearing No. 113/95 was registered. The petitioners were chargesheeted and prosecuted for the offence of conspiracy punishable under Section 29 of the Narcotic & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Custom authorities had discovered certain mandrax tablets and case was registered where the present petitioners were named as accused. Thereafter, at a subsequent stage, the petitioners were formally arrested for the said offence and were chargesheeted. (ii) Again, Spl.Court (NDPS) Madurai for the second chargesheet, registered criminal case No. 325/95. The said case was also registered for the offence of conspiracy, manufacturing of contraband goods under the NDPS Act and possession and transportation to India from one State to another and one of the charges included offence under Section 29 of NDPS Act. (iii) On or about 26.3.1995, a third case was registered wherein petitioners and others were chargesheeted for the offences punishable under the provisions of NDPS Act for manufacture at a factory Hari Om in Chikhli in the State of Gujarat. Both the petitioners along with others are chargesheeted for manufacturing, possession, transport inter-State and also for the offence of conspiracy punishable under Section 29 of NDPS Act. This third case was registered as Criminal Case No. 417/95 in the Court of ld. Spl. Judge, Madurai. According to the petitioners, the prosecution specifically had placed reliance on a particular set of evidence i.e. " during the period June, 1994 to March, 1995 at Surat, Madras, Trichi, Tuticorin and at other places", the present petitioners along with other five accused with known and unknown persons entered into criminal conspiracy to do illegal acts regarding Psychotropic substances, which also included the charge of conspiracy punishable under Section 29 of the NDPS Act. (iv) On or about 30.11.1994, custom authorities had searched a godown at Bangalore and recovered cylinders containing mandrax tablets. In this connection, criminal complaint was filed in the appropriate Court for the offence punishable under Sections 8(C), 22 and 29 of NDPS Act. The charges were framed against the accused which included the same charge i.e. "both of you have conspired in the manufacture, transport and sell of mandrax tablets, punishable under Section 29 of the Act." (v) Both the petitioners were the accused in four different criminal cases and the present petition is in connection with fifth criminal case filed against the present petitioners and three others on the basis of the complaint filed in September, 1995 on the allegation that on 17.12.1994 when the custom authorities raided the factory namely M/s Hari Om Engineers, Chikhli, Valsad Road, Gujarat, they have discovered certain quantity of mandrax tablets. The said complaint is for the offences punishable under Sections 22, 23, 25A R/w Sections 9A, 29A, 25, 29, 31, 31A & 67 of NDPS Act, along with the offences punishable under Sections 120B IPC and Section 135A of Customs Act. Criminal Case Nos. 113/95, 417/95 and 325/95 were filed before the Special District & Sessions Judge, NDPS, Madurai. In two criminal cases, along with present petitioners, others were also arraigned as accused. Certified copies of the charge in three cases are tendered to this Court during the course of oral arguments. True zerox copies of charges framed by ld. Sessions Judge, Madurai were already produced on the date of institution of the present application. In three criminal cases, ld. Sessions Judge, Madurai has framed charge on 28.8.1995. Meanwhile, on the strength of the complaint ( OR No.5/94) filed by the Asstt. Commissioner of Customs, Bangalore, Special Criminal Case No. 90/96 was instituted in the Court of Sessions, at Bangalore. But was three cases were already pending before the Sessions Court at Madurai, complainant Asstt. Commissioner of Customs, Bangalore Mr. P. Rangaswami approached the Hon'ble Apex Court vide Transfer Petition (Criminal) No. 159/97 and got Bangalore case transferred to the Court of Sessions, NDPS, at Madurai vide order dated 23.3.1998 and directed the Ld. Special Judge (NDPS), Madurai to try the transferred Bangalore case along with Criminal Case No. 113/95 titled as " K.S. Gnanashekar, Supdt. of Central Excise v/s Shri Prem Pratap Singh Sisodiya and others." Ultimately, ld. Judge trying three cases against the accused persons including the present petitioners, registered Criminal Case No. 662/98 and framed charges against both the petitionersaccused on 27.10.1998. It is contended by the petitioners that after trial, the accused are acquitted. In all the four criminal cases, present petitioners-accused were charged for various offences including the charge of conspiracy or to do the act in furtherance of the said conspiracy. If it is seen chronologically, the present petitioners, along with other accused are charged in different criminal cases as under :- (i) Criminal Case No. 113/95. In this case, both the petitioners- accused were charged for the offences punishable under Sections 29, S.8(c) R/w S.22, S.9 R/w S. 25A of NDPS Act and under Section 135 of the Customs Act. (ii) Criminal Case No. 417/95. In this case, both the accused along with two others, were charged for the offences punishable under Sections 29, S.8(c) R/w 22 & 29, 23 R/w S.28, S.29 R/w S.25 of NDPS Act; (iii) Criminal Case No. 325/95. In this case, both the accused along with two others, were charged for the offences punishable under Sections 29, 22, S.8(C) R/w S.22 of NDPS Act and under Section 135 of the Customs Act. (iv) Criminal Case No. 562/98 ( Bangalore Case ). In this case, both the accused were charged for the offences punishable under Sections 29, 22, NDPS Act; 5. The charge of conspiracy to manufacture, possess, transport, sell inter-State and to export out of India is framed and the same is faced by the accused in full-fledged trial. Every act of possession, manufacture, transportation inter-State are all overt act pursuant to the alleged conspiracy. Hence, according to ld. Senior Counsel Mr. Barot , they formed part of the same transaction. Hence, different or successive act cannot be considered. If arrest is made and complaint is filed, then subsequent complaint is not sustainable at law. The say of ld. Sr. Counsel Mr. Barot is that this is more so when the person has been acquitted of the charge of conspiracy and also charge of manufacture of mandrax tablets at Chikhli after the lawful trial. The act of manufacturing mandrax tablets at Chikhli factory was the backbone of the trial conducted by the ld. Sessions Judge (NDPS), Madurai. There cannot be trial at Valsad for the same cause. The same would be barred by the principles of "issue estoppel". Section 300(4) of CrPC bars even trial of a person acquitted and impleaded for the same offence or on the same facts for which different charges might have been framed. It is on record that for Valsad case, therer was no arrest ansd after filing of the complaint, Prisoner Transfer Warrant was issued to the Jailor at Madurai to transfer the petitioners to face the trial at Valsad. According to Mr. Barot, in Valsad case, number of sections are appearing, but so far as the complaint of the offence punishable under Section 31 or 31A of NDPS Act is concerned, it cannot sustain against the petitioners as it can be applied only when the accused are tried for the second offence where the first charge has resulted into conviction. The petitioners are acquitted and it is not the case of the prosecution that they were earlier convicted in any other offence under the NDPS Act. Charge of Section 120B IPC is redundant because charge of conspiracy is an independent charge punishable under Section 29 of NDPS Act and the same is applied. Therefore, there cannot be two different charges of conspiracy. Section 120B of IPC is general provision for criminal conspiracy whereas Section 29 of NDPS Act is special and independent provision to deal with conspiracy qua narcotic & psychotropic substances. So far as Section 27A of the NDPS Act is concerned applied in the case of the present petitioners, can be applied when a person indulges in financing activities specified in a particular sub-clause or who harbours any person engaged in any of the mentioned activities. There is no averment in the complaint that their status is of financer or a persons who have harboured a person indulged in the mentioned activities. On the contrary, the complaint filed at Valsad poses both these appellants- accused as main accused. Section 67 referred to in the complaint confers powers to call for certain information etc. It is not a penal provision. So, ld. Sr. Counsel Mr. Barot has submitted that the present petitioners have already faced the trial and have been acquitted of all the substantive charges/offences levelled against them in the instant compliant and, therefore, they cannot be forced to face the trial. 6. The present petitioners by filing Transfer Petition (CRL) No. 173/95, have attempted to get the Valsad case transferred to Madurai Court as the complaint was filed in connection with same transaction or at least on the same facts and material and on same or similar documents, but surprisingly, transfer petition filed by the petitioners was resisted by the complainant. One one hand, custom authorities at Bangalore prays for transfer of Bangalore case to Madurai Court and on the other hand, authorities of the same department have resisted the transfer of the case from Valsad to Madurai. Mr. Anant S.Dave, ld. Central Govt. Standing Counsel has submitted that the Apex Court has found that the Valsad case is substantially different and pendency of the case at Valsad was not otherwise illegal and, therefore, the department had resisted transfer petition. Certified copy of the affidavit filed by the complainant Mr. A.C. Patel, Supdt. of Customs, Valsad is brought before this Court. Copy of the order of the Apex Court dated 22.4.1996 disposing of transfer application is also on record. Order of the Apex Court has been referred by the petitioners in the petition wherein the Apex Court has said that; "we do not consider it appropriate to transfer any of the cases to another Court as prayed for in this Transfer Petition. However, if on conclusion of any of the trials, the Petitioners are likely to be prejudiced as a result of pendency of the remaining trials in some other Courts. The Petitioners would have liberty at that time to make a suitable prayer which may be appropriate in the then existing circumstances. We deem it fit to make these observations while dismissing this Transfer Petition, in view of the fact that the only penalty prescribed for the offence is the penalty of death. The Transfer Petition is disposed of in those terms." If above order is carefully read and considered, the words " we deem it fit to make these observations while dismissing this Transfer Petition, in view of the fact that the only penalty prescribed for the offence is the penalty of death", are relevant so far as present petition is concerned. It is important to note that the Apex Court has also observed that the petitioners would have liberty to make a suitable prayer which may be appropriate in the then existing circumstances. ( emphasis supplied ). As the accused are acquitted by the trial Court, the question of imposition of death penalty does not arise. If Valsad case would have been transferred to Madurai and the trial would have resulted into conviction of the petitioners, even then, I am afraid that trial Court could have convicted the present petitioners for the offences punishable under Sections 31A of the NDPS Act. It is not necessary to quote Section 31A of the Act which deals with the death penalty for certain offences after previous conviction. 7. This petition has been moved as the petitioners were granted liberty to make suitable prayer at appropriate stage by the Apex Court. Even otherwise in each case where petitioner is able to show that his say is not a defence version only and the point raised touches the sustainability, the powers under Sec.482 of CrPC can be invoked irrespective of the fact wehther plea of issue estoppel under Section 300 of CrPC is available or not. It is averred that now is the time when the case pending in Valsad Court namely Special Criminal Case No. 70/95 is likely to be taken up and the trial in the aforesaid circumstances and set of facts available on record, is not sustainable. On careful reading of the affidavit filed by the complainant Mr. A.C. Patel before the Hon'ble Apex Court, it transpires that the transfer was resisted mainly on the ground of hardship, inconvenience to the department as well as number of witnesses to be examined, expected huge expenses and other difficulties like language problem etc. I would like to quote sub-para (7) of para-5 as well as para-6 of the affidavit, which says that :- "5(vii) With reference to para (m), I say that there are 21 Panchanamas drawn in the case file with Navsari Court, in addition to which 102 statements of different persons were also recorded and 78 witnesses are cited for examination in the Court and they are residing in District Valsad Gujarat State and in the surrounding areas. Moreover 199 documents over and above test results etc. collected as evidences in this case also required to be produced and proved in the Hon'ble Court at Navsari. The hardship to be caused due to transfer of this case to Madurai to the above referred witnesses, independent Panchanama witnesses and the concerned persons and lot of Government officials, whose statements are recorded will be much more than to the Petitioners. Moreover, a number of officers who participated in this case may also be required to attend the Hon'ble Court at Madurai which will also lead to hardship to them and the Government will have to bear the huge expenses on this account. Again most of these documents are in Gujarati language. Many witnesses know only Gujarati language and they are illiterate. It will also be difficult for them to travel such a long distance. They will be afraid to go to unknown place for deposing against hardened criminals. The financial burden and hardship caused to Government officers and witnesses (around 78) would be much greater than the Petitioner. This may lead to miscarriage of justice, if many witnesses are not able to go to Madurai and the department's case may be weakened due to non-appearance. It may take a lot of time (in years) by virtue of giving dates to the witnesses. 6. In view of the above averments and submissions, I submit that it would not be in the interest of justice to transfer C.C. No. 70 of 1995 to the Special Judge, Madurai, Tamil Nadu as it is likely to stall the progress of the cases pending, before the S.L.P., which are otherwise at an advance stage. The other accused are likely to suffer hardship in case the transfer petition is allowed. I further say that majority of the prosecution witnesses are local people, who know Gujarati language and as such may be handicapped in giving evidence at a place where the court language is Tamil. The prosecution is also likely to suffer huge financial losses in case the transfer is allowed. It is, therefore, submitted that it would neither be in the interest of justice, nor expedient for expeditious trial to transfer the case as prayed for." So, it would not be legal or proper to agree with the submission of Mr. Anant S.Dave, ld. Central Govt. Standing Counsel that the transfer application was dismissed on merits and it was concluded positively that Valsad case is altogether a different case so far as present two petitioners are concerned. 8. The affidavit of resistance filed on behalf of respondent no.1 is based on the contents of the affidavit filed by the department in the transfer petition preferred before the Apex Court by the petitioners and it is contended that the facts of the case at Valsad are totally different than the earlier case. The fact that 21 panchanamas were drawn in addition to 102 statements of different persons were recorded and 78 persons are cited as witnesses for the examination in the Court, would not be a matter of much relevance, though para-8 of the affidavit mainly narrates this procedural aspect. On the contrary, during the course of oral submissions, it has been contended by Mr. Dave that the raiding officer who has also investigated Valsad case for which complaint at Valsad has been filed, was one of the witnesses in the criminal cases tried by Madurai Court. Not only that, his deposition has been recorded before the Sessions Court at Madurai. Mr. B.C Patel was the officer concerned. When the transfer application was filed before the Hon'ble Apex Court, Mr. A.C. Patel was in the office of Superintendent of Customs, as successor. It would be relevant to quote some of the part of his examination-in-chie. Mr. B.C. Patel, in the month of September, 1995, was working as Superintendent of Customs (Preventive), Custom Task Force, Valsad. He has stated in his deposition before Madurai Court that :- "...... The Asstt. Commissioner, Customs had told me that Central Excise Officers have seized mandrax tablets at M/s Hari Om Engineers, Chikhli and they required help of customs and therefore, I proceeded to the factory along with my staff. Previously the customs officers at Tuticorin informed about the seizure of mandrax tablets at Tuticorin which were sent from Hari Om Engineers, to the Commissioner of Central Excise, Surat, who in turn sent his officers to factory premises at M/s Hari Om Engineers at Chikhli. Then effected seizure of mandrax tablets on 17.12.1994 and on 19.12.1994 the Central Excise Officers asked for the help of customs officers of Valsad and Surat." He has further deposed that - " Therefore, the whole investigation was handed over to me as Superintendent of Customs Task Force of Valsad ( the learned Spl.P.P. has questioned : Who is Vijaya Sing ? Witness says that : Vijaya Sing who is Prem Pratap Sing Sisodia. This question is strongly opposed by the learned counsel for the Accused 1 and 2, objection over ruled.) During the investigation I collected information that the owners of the M/s Hari Om Engineers, Chikhli, have dispatched consigned two consignments of Chlorine Gas Cylinders containing mandrax tablets each consignment of seven such cylinders during June 1994 and July 1994 through Sakti Cargo Movers of Surat. Thereafter, I proceeded to Sakti Cargo Movers on 19.1.1995 and interrogated and recorded the statement of Mr. Kanwal Kishore Arrora, Director of Sakti Cargo Movers Private Ltd. who deposed that one such consignment on 19.6.1994 and another on 2.7.1994, each contained seven cylinders i.e. 14 cylinders of chlorine gas were transported from his godown at Jeyanchi Singh Compound, Near Poonapatia Post Magob District : Surat to Madras in the name of consignor Padmini Agencies, consignee-self- and both the above consignments were sent through M/s Batco Roadways, Madras." He has further stated in his examination-in-chief that- " My investigation discloses after recording those statement and connected materials I came to the conclusion that they are not deposing wholly the right answers (this question is opposed by the defence) I, therefore, closed the statement here and at Gujarat I contacted number of persons in whose contact both the accused, interrogated them and recorded statements which revealed that they had manufactured mandrax tablets and cleared the same by using various fictitious names. (This question is also objected by the learned counsel for the A.1 & A.2 ). On 12.5.1995 as requested by the D.R.I. Madras, the statements Ex.P.94 to 99 were sent to D.R.I. Madras for further action." 9. It is on record that exh.94 referred to by Mr. B.C.Patel before Madurai Court is nothing but the statement allegedly recorded by him under Section 67 & 108 of the Customs Act of petitioner accused Mr. Anil Desai. Exh.95 to 97 are the Further Statements of very accused Anil Desai. Exh.98 & 99 are the statement and further statement of accused petitioner no.1 Prem Pratap Singh Sisodia. These statements are also allegedly recorded under the provisions of sections 67 & 108 of the Customs Act. Though, respondent side has placed reliance on some observations made by the ld. Sessions Judge of Valsad at Navsari while dealing with Cri. Misc. Application No.323/99 for bail and zerox copy of the order passed below said bail application