IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 855 of 1988 with CRIMINAL APPEAL No 872 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE K.R.VYAS and MR.JUSTICE A.R.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? 1 and 2 :- Yes & 3 to 5 :-No. -------------------------------------------------------------- MUKESH NATVARLAL MODI Versus H.S.BAROT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 855 of 1988 Ms S.M.Ahuja with Mr.M.B.Ahuja, Advocates for the appellants. Mr.Sunil C.Patel, Addl. Standing Counsel for respondent No.1. Mr.K.C.Shah, Additional Public Prosecutor for respondent No.2. 2. Criminal AppealNo 872 of 1988 Mr. Arun H.Mehta, Advocate for the appellant. Mr. K.C.Shah, Additional Public Prosecutor for respondent No.1. Mr. Sunil C.Patel, Addl. Standing counsel for respondent No.2. -------------------------------------------------------------- CORAM : MR.JUSTICE K.R.VYAS and MR.JUSTICE A.R.DAVE Date of decision:26-30/09/97 and 1-10-97 ORAL JUDGMENT :PER K.R.VYAS,J. These two appeals have been preferred by original accused Nos.1 and 2 of Sessions Case No.259/87, who , at the end of the trial, have been convicted by the learned City Sessions Judge, Ahmedabad, for offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act,1985 ( hereinafter referred to as "the NDPS Act"). Accused No.1 was convicted on the count of purchase of brown-sugar and was sentenced to suffer 10 years R.I. and to pay a fine of Rs.1 lac indefault to undergo further R.I. for one year. The said accused was also convicted on the count of being in possession of brown-sugar and was sentenced to suffer R.I. for ten years and to pay a fine of Rs.1 lac indefault to undergo further R.I. for one year. The learned trial Judge ordered the substantive substances imposed upon accused No.1 on the above counts to run concurrently. Accused No.2 was convicted for the offence punishable under section 21 of the NDPS Act for selling brown-sugar to accused No.1 and was sentenced to suffer R.I. for ten years and to pay a fine of Rs. 1 lac and in default to undergo further R.I. for one year. As both these appeals arise out of the judgment and order of conviction and sentence passed by the learned City Sessions Judge in Criminal Case No.259/87, we have heard both these appeals together and are being disposed of by this common judgment. The prosecution case, in brief, can be stated asunder: On June 6,1987, Mr.A.A.Maulvi (P.W.2) the then Inspector of Customs ( Preventive ) , Ahmedabad, was contacted by an informant to give him some information. Mr. Maulvi thereafter contacted Mr.H.S.Barot (P.W.1) the then Superintendent of Customs with the informant. The informant gave information to Mr. Barot to the effect that accused No.1 has in his house brown-sugar or heroin. On receiving such information Mr.Barot prepared a record of that information and put the same in an envelope, which was sealed and passed on that sealed envelope to Mr.H.D.Desai, Assistant Collector of Customs (Preventive). After certain discussion with Mr. H.D.Desai regarding the modality of carrying out the raid at the house of accused No.1, a decision was taken to carry out the raid in the morning of June 7,1987. Accordingly at about 6.00 a.m. on June 7, 1987, Mr. Barot, Mr.Maulvi and Mr. R.N.Rathod (P.W.3) the then Inspector, assembled at the Customs House, Ahmedabad. Mr. Barot prepared and issued a search warrant in the name of Mr.Maulvi ordering and authorising him to search the house of accused No.1. Under the direct supervision of Mr.Barot, it was also decided to accompany the raiding party. Mr.Barot instructed Mr. Maulvi to arrange for and to take with him two Panch witnesses. The raiding party proceeded in two motor vehicles towards the house of accused No.1. On way to the house of accused No.1, Mr.Maulvi, from near Jamalpur Gate, summoned two Panch witnesses and took them with him in the car. The members of the raiding party assembled at a short distance away from the house of accused No.1, which is situated on the first floor of bungalow No.1 Ranchhodrai Society at Gordhanwadi Tekra. Mr. Maulvi showed the search warrant to accused No.1 and obtained his signature thereon and the endorsement about the execution of search warrant was also made thereon and the signatures of the Panchas were also obtained on that document. Mr.Maulvi, as Searching Officer, has also put his signature thereon. Accused No.1 was informed about the purpose for which the party had approached his house. He was also informed that if he so desired, he would search the persons of the members of the raiding party to which accused No.1 showed no inclination . At the time of the search of the house of accused No.1, other members of the family of accused No.1 viz his father Natverlal, his wife Alkaben and his wife's sister Deepaben and two minor children were present. When the search was carried out in the first room or the drawing room of the house, nothing incriminating was found therefrom. However, when the second room or the inner room was searched, from a top of a cupboard, from a hollow space between the top of the cupboard and the loft above it, the raiding party recovered 25 sachets or 25 small polythene bags containing brown powder. On being asked about these sachets by the raiding party, accused No.1 stated that those sachets contain brown sugar or heroin. From that inner room, three documents (1) a communication from the Telephone Department addressed to accused No.1 in connection with transfer of his telephone from his shop to his house, (2) a telephone bill and (3) a bill issued in the name of accused No.1 by a grain merchant, were also attached. Out of 25 sachets containing brown powder, one was opened and the powder containing therein was weighed. The powder weighed about 3 grams. The empty sachet weighed one gram. The powder was then replaced in the sachet which was then repacked. The remaining 24 sachets were individually weighed together with the powder they contained and each of those 24 sachets with the powder weighed about 4 grams. Out of 24 sachets, three were sorted out as samples. Each one of these three sachets was placed in a separate brown coloured envelope. On those brown coloured envelopes, necessary packing slips were affixed containing the description of the case, and the contents. Below that description, signatures of accused No.1 and the Panchas were obtained and Mr. Maulvi put his signatures thereon as a Seizing Officer. By means of packing slips thus prepared, the three envelopes were packed and were properly sealed with sealing wax using the brass seal of the Customs Office. the remaining 22 sachets were then placed in a plastic bag which was put in a box or a carton. That carton was wrapped in a news paper and on that news paper wrapping a packing slip containing the description of the case and the contents and bearing the signatures of the Panchas, accused No.1 and Mr.Maulvi was affixed. The carton was thereafter packed by means of cotton strap and was properly sealed by means of sealing wax, using the brass seal of the Customs Department. A panchnama of all these facts, that took place and transpired at the house of accused No.1 was drawn at his house. Thereafter Mr.Barot and members of the raiding party came to the Customs House taking accused No.1 with them after instructing father Natverlal and Alkaben-the wife of accused No.1 to follow them and to come to the Customs House. At the Customs Office, Mr. Barot recorded the statements of Natverlal and Alkaben under section 67 of the NDPS Act. Mr.Barot thereafter started informal interrogation of accused No.1 with a view to know the source of 25 sachets of brown-sugar, which were recovered from the house of accused No.1 and accused No.1 stated that he has purchased the brown-sugar from accused No.2, whose name and address were also given to Mr. Barot. Mr.Barot thereafter prepared and issued a second search warrant authorizing and ordering Mr. Rathod (P.W.3) to go to the house of accused No.2 and search her house. Thereafter Mr.Barot started recording the formal statement of accused No.1 under section 67 of the NDPS Act. In the meantime, in pursuance of the search warrant issued in his name, Mr. Rathod with some other Customs Inspector, approached the house of accused No.2 and searched her house, but nothing incriminating was found from her house. However, Mr. Rathod returned to Customs House taking accused No.2 with him when Mr. Barot was busy recording the statement of accused No.1. In the midst of the recording of the statement of accused No.1, accused No.2 was shown to accused No.1 and thereupon accused No.1 identified accused No.2 as the person from whom he had purchased the brown-sugar. In token of this identification, the thumb impression of accused No.2 was obtained in the middle on one side of the page on which at that time the record of the statement of accused No.1 was being made by Mr.Maulvi under the supervision of Mr.Barot.Thereafter the recording of the statement of accused No.1 was completed wherein he has admitted having purchased 30 sachets of brown-sugar from accused No.2 some five days prior to the date of the recording of the statement. He also admitted having sold therefrom five sachets to different persons. He further admitted having purchased four sachets of brown-sugar from accused No.2 fifteen days prior to the date on which their statements were recorded. Mr. Barot thereafter recorded the statement of accused No.2 under section 67 of the NDPS Act. Then the proceedings of the case were drawn out in the form of a note in a note-sheet and then under the orders of Mr., Barot, Mr. Maulvi arrested the two accused on the same evening at about 8.00 p.m., produced them before the concerned Metropolitan Magistrate with the production report. On the next day, four muddamal articles ( the three envelopes each containing one sachet and the carton containing 22 sachets found from the house of accused No.1) were produced before the learned Metropolitan Magistrate for appropriate orders. During the course of investigation conducted and carried out by Mr.Barot, one envelope out of three was sent to the Central Revenue Control Laboratory at New Delhi for the analysis of the contents thereof being made and a report of the analysis being submitted. Mr. Johari (P.W.5) accordingly analyzed the contents and submitted his report stating that the brown powder contained in the sachet showed the presence of diacetyl morphine and the substance was covered under the NDPS Act. On receipt of the said report, Mr.Barot filed a complaint against the two accused before the learned Chief Metropolitan Magistrate, who, after following the procedure, committed the case to the learned City Sessions Judge, Ahmedabad. The Charge, Ex.4, was framed against the accused to which they denied and according to them they are innocent and they have been falsely framed up in this case by the Customs Authorities. According to accused No.1, at about 8.00 p.m. on the day of the incident i.e. on June 7,1987, he had returned from the night-shift of his auto-rickshaw plying and was standing near his house, and at that time some customs officers forcibly lodged him into a motor car and whisked him away to the customs office where he was severely beaten. It is the say of accused No.1 that at the customs office, the Customs Officers threatened to brand him by means of red hot brick and under that threat they obtained his signatures on some 30 to 40 blank papers and on some brown envelopes and thereafter he was produced before the learned Metropolitan Magistrate at the Magistrate's residence. According to accused No.1 his house was not at all searched by the Customs Officers and nothing was found from his house. As far as the documents alleged by the prosecution to have been seized from his house, it is the case of accused No.1 that these documents were attached from his pocket by the Customs Officers. In substance, accused No.1 has denied his involvement in the case in toto. According to accused No.2, while pleading not guilty to the charge, she has also denied having ever sold brown-sugar or any incriminating substance to accused No.1. According to her, the Customs Officers had come to her house and had brought her to the Customs Office saying that she would be relieved after her statement was recorded. She has denied the prosecution case that at the customs office she was identified before Mr.Barot by accused No.1 as the person from whom accused No.1 had purchased brown-sugar. She has also denied that Mr.Barot had recorded her statement, Ex.16. According to her she was taken from her house to the Customs House and was made to sit in a garden and that her statement was never recorded. However, the Customs Officers obtained her thumb impressions on some blank papers. The learned trial Judge, after considering the documentary as well as oral evidence led before him, found that the prosecution has successfully established the charge levelled against the accused and, therefore, he by his judgment and order dated 16th September, 1988 convicted both the accused and sentenced them as stated in paragraph 1 of this judgment. We have given detailed facts from the evidence of the prosecution witnesses who on all material aspects have given identical versions and, therefore, it is not necessary for us to narrate the evidence of each of the prosecution witnesses in this judgment. In light of the above facts on record, we have to consider the alleged involvement of the accused in the commission of the offences and to find out as to whether the learned trial Judge has committed any error in convicting the accused and passing the order of sentence. Ms Ahuja, learned Advocate, appearing for accused No.1, has challenged the order of conviction by contending that accused No.1 has been falsely involved in the case as no raid was carried out at his house and nothing incriminating was found from his house. Mr.A.H.Mehta, learned Advocate, appearing for accused No.2, has contended that since there is no evidence worth its name, except the statement of co-accused i.e. accused No.1, produced by the prosecution involving accused No.2 in the commission of the offence in question, no conviction can be based on the basis of the statement of the co-accused. Now, as far as the present case is concerned, the prosecution has relied on the evidence of Customs Officers Mr. Barot (P.W.1, Ex.10), Mr.Maulvi (P.W.2,Ex.30 ) and Mr. Rathod (P.W.3, Ex.36) and Panch witness Mohmad Aslam (P.W.4, Ex.40). It is to be noted that it is not the suggestion of the defence that any of the three Customs Officers and the Panch Witness has any hostility with any of the accused. It is also not shown that the Panch witness has any personal interest in the success of this prosecution case. From the evidence of these witnesses it is clear that three documents, Exs.32,33 and 34 were recovered from the house of accused No.1. It is the consistent say of these prosecution witnesses that the document Ex.32 is the bill of grain merchant of Laxmi Traders showing the purchase of wheat by accused No.1. Mr. Barot has recorded the statement of Kanubhai the owner or partner of Laxmi Traders at Ex.21 and in that statement Kanubhai has referred to this bill Ex.32 as having been issued by his shop in the name of accused No.1 in respect of the sale of wheat by his shop to accused No.1. Ex.33 is the letter from Telephone Department addressed to accused No.1 and that letter is in connection with the application of accused No.1 to transfer his telephone from his shop to his residence and Ex.34 is the Telephone bill in the name of accused No.1. When all these documents Exs.32,33 and 34 were recovered and when the signature of accused No.1 was also obtained on each of these documents, we have to accept the fact that the search of the house of accused No.1 was carried out. However, it is the say of accused No.1 in his statement recorded under section 313 of the Criminal Procedure Code that these documents were, in fact, recovered from his pocket while he was standing outside his house. It is not possible to accept the say of accused No.1 for the simple reason that considering the dates mentioned in the said documents, which are stale viz bill,Ex.32, dated 10-4-87 of which the payment was made on 18-5-87, letter, Ex.33 , dated 25-2-87 and the telephone bill ,Ex.34, dated 1-5-87 , accused No.1 would have no necessity to keep these documents in his pocket. Apart from the evidence of these prosecution witnesses, the prosecution has also relied upon the statement, Ex.12, of Natverlal-the father as also the statement Ex.13 of Alkaben-the wife of accused No.1 recorded under section 67 of the NDPS Act. The learned counsel for the accused have contended that these statements recorded before the Customs Officer are inadmissible in evidence. This contention is not well-founded in view of the decision of this Court in Mangalsingh Bhansingh Rathod vs State of Gujarat, 1988 (2) G.L.R.1028 wherein it is held that all the provisions of Chapter XII of the Criminal Procedure Code cannot be attracted in respect of narcotics offences investigated by authorized Officers of Customs, Excise and other department and such authorized Officers are not Police Officers and statements made before them are not in admissible in evidence. This Court, in fact, negatived the contention that confessional and incriminating statements of the accused have been made before the authorized Excise Officers as if the said Officers are Police Officers and, therefore, the statements are directly hit by sections 25 and 26 of the Evidence Act. In view of this, we find no difficulty in accepting the statements obtained by the Customs Officers not only of Natverlal at Ex.12 and Alkaben at Ex.30 but also the statements of the accused. Reading the statements of Natverlal and Alkaben , it is clear beyond any manner of doubt that the raid had been carried out at the house of accused No.1. These statements also refer to the sachets of brown-sugar having been recovered from the house of accused No.1 during the raid. It is true, and which appears to us to be quite natural, that in their statements the father as well as wife of accuse No.1 have stated that they were totally unaware of the sachets of brown-sugar having been kept by accused No.1 in their house. However, the fact remains that 25 sachets of brown-sugar were in fact recovered from the house of accused No.1. In the statement, Ex.15, also accused No.1 has clearly admitted the fact of the raid having been carried out at his house. He has also admitted the statements of his father as well as his wife having been recorded and has also admitted the documents Exs.32,33 and 34 having been attached from his house. He has further admitted that he had purchased 30 sachets of brown-sugar at the cost of Rs.6000/- from accused No.2 some five days prior to the date of the statement. In fact, he himself had given the address of accused No.2 and on the basis thereof, Mr.Barot authorized Mr. Rathod to search the house of accused No.2. It is true that in the search carried out by Mr. Rathod at the house of accused No.2 , nothing was recovered. However, when Mr.Rathod returned with accused No.2 at the Customs House when the statement of accused No.1 was being recorded, accused No.1 immediately identified accused No.2 as the person from whom he purchased 30 sachets of brown-sugar some five days prior to the date of his statement and in token of that identification, the thumb impression of accused No.2 was also obtained on one side somewhere in the middle of the page of the statement , Ex.15, of accused No.1. The fact that accused No.2 has also admitted in her statement that some officers had come to her house and told her to accompany them would corroborate the story of the prosecution inasmuch as Mr.Rathod had gone to the house of accused No.2. Thus, the case against the accused is duly proved in view of the material on record. Apart from the statement of co-accused viz accused No.1, in our view, the prosecution has led independent evidence against accused No.2 also. In Naresh J.Sukhawani vs Union of India, AIR 1996 SC 522, the Supreme Court has ruled that statement made before Customs Officers against co-accused under section 108 of the Customs Act incriminating himself and accused in passing off foreign currency out of India can be used as substantive evidence connecting the accused with contravention of the provisions of the Customs Act and it is not a statement recorded under section 161 of the Criminal Procedure Code. Therefore, we see no merit in the submission of Mr. Mehta that on the basis of the statement of the co-accused i.e. accused No.1, accused No.2 cannot be convicted for the offence with which she was charged. In that view of the matter the decision in Param Hans Yadav and Sandanand Tripathi vs State of Bihar and ors AIR 1987 SC 955 relied upon by Mr. Mehta is not applicable to the facts of this case. The Supreme Court in the said decision has ruled that the confession of a co-accused is not substantive evidence against the other co-accused persons in the trial but could only be used for lending reassurance if there be any other substantive evidence to be utilized or acted upon. There cannot be any dispute with respect to the principles laid down in the said decision. However, as stated above, in the instant case, the prosecution has over and above relying upon the statement of the co-accused has proved the case against accused No.2 with other materials. Thus, in our opinion, the prosecution has successfully established the charge levelled against the accused, and no error whatsoever is found to have been committed by the learned trial Judge in convicting the accused. Now, let us deal with certain technical contentions raised on behalf of the accused. Mr. A.H.Mehta, learned counsel contended that even though Mr.Maulvi (PW 3) received the information regarding the accused No.1 being in possession of brown-sugar in question which was concealed by him in his house, had not recorded the said information in writing and instead took the informant to the higher officer Mr.Barot (PW 2) and therefore the prosecution had withheld the first information given to Mr.Maulvi (PW 3). In the submission of Mr. Mehta, thus there is a breach of the provisions of section 42 (1) of the NDPS Act. The learned counsel for the accused have further submitted that as the search of the house of accused No.1 was carried out in breach of the provisions of section 50 of the NDPS Act, which is mandatory in nature, no order of conviction can be passed in asmuch as the search was admittedly carried out by Mr. Maulvi who was not a Gazetted Officer but was authorized by the Gazetted Officer Mr.Barot and since Mr. Maulvi had not taken accused No.1 to the Gazetted Officer or to the nearest Magistrate, the search carried out by Mr.Maulvi was contrary to the provisions of section 50 and, therefore, the order of conviction vitiates . In order to appreciate the contentions raised by the learned counsel for the accused, it is necessary to refer to the provisions of sections 41, 42 and 50 of the NDPS Act, which read