1 Cri-Apeal-394-07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 394 OF 2007 Preetam Liladhar Namdeo, ) Indian National, Age-25 years, ) R/o.Halkara galli, Purana khanpura,) Mandsaur, M.P. ) (at present in judicial custody ) at Mumbai Central Prison) ) ...Appellant VS. 1. Union of India ) Air Intelligence Unit, ) Customs, ) Mumbai. ) ) 2. State of Maharashtra ) ...Respondents Mr.Ayaz Khan with Ms.Zehra Charania for the Appellant. Mr.Francis Saldanha for Respondent No.1-Union of India. Smt.M.M. Deshmukh, APP for the State. CORAM : U.D. SALVI, J. JUDGMENT RESERVED ON : APRIL 21, 2011 JUDGMENT PRONOUNCED ON : JUNE 16, 2011 ORAL JUDGMENT :- 1 This appeal arises from the judgment and 2 Cri-Apeal-394-07 order passed by the Special Judge, City Sessions Court, Greater Bombay, in NDPS Special Case No. 71/2002 along with NDPS Special Case No.46 of 2003 on 9th March, 2007. The appellant-accused Preetam Liladhar Namdeo was convicted of the offence punishable under Section 21 read with 8(c) of the NDPS Act, 1985 and was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1 lakh, in default, to suffer RI for further six months in NDPS Special Case No.71 of 2002. Munna Hamid - the accused in the special case - NDPS Special case No.46 of 2003 was acquitted of the offence punishable under Section 29 read with Sections 8(c) and 21 of the NDPS Act, 1985. 2 Both the aforesaid cases arose out of: Firstly, interception of the appellant-accused with 6.168 kgs. of heroin found in his possession while alighting from the bus No.505 at CBD Belapur Bus Depot around 11.30 a.m. on 23rd May, 2002 and 3 Cri-Apeal-394-07 secondly, the apprehension of Munna Hamid on 11th January, 2003 by the DRI Officers in connection with the seizure of the heroin from the appellant-accused. DRI Officers acted upon a specific information received on 23rd May, 2002 and laid the trap at CBD Bus Depot. Information received was reduced in writing by Mr.Tolani, Intelligence Officer, DRI, who received the information and thereafter, the same was put up before the Senior Intelligence Officer and Assistant Director of DRI. Directions were given for intercepting the suspect. Consequently, the appellant-accused found alighting from bus root No. 505 at CBD Bus Depot, Belapur, with a green coloured cloth bag in his hand at 11.30 a.m. on 23rd May, 2002 was intercepted. 3 According to the prosecution, 12 transparent polythene bags containing brown powder, which tested positive for presence of heroin in the field test were found in the green coloured cloth bag in the 4 Cri-Apeal-394-07 hand of the appellant-accused. The appellant-accused was taken to the Central Excise office at CBD Belapur for carrying out search and seizure operations. It is the case of the prosecution that before effecting a personal search, the seizing officer gave an option to the appellant-accused under Section 50 of the NDPS Act as to whether he wanted his search to be taken before the Gazetted Officer or a Magistrate and thereafter at the instance of the appellant-accused, he was searched and examined in the presence of Mr.S.D. Kulkarni, Superintendent of Central Excise, Mumbai, the Gazetted Officer, then present. Besides the 12 bags filled with brown powder, the prosecution revealed, the search resulted in recovery of one railway ticket, one bus ticket, cash amount of Rs. 640/-, key chain and such other personal belongings from the possession of the appellant-accused. 4 According to the prosecution, the packets containing brown powder were weighed and separately 5 Cri-Apeal-394-07 numbered as Serial Nos.1 to 12. Packets were segregated in two lots of six packets each. Powder from each lot was mixed separately and two samples of 5 gram each were drawn from each of the lot of the mixed powder. Samples were packed and sealed separately in separate envelopes. Search and seizure was completed at the Customs and Excise Office after recording panchnama of the events at the said office. Forensic investigations done by the Dy.CC & CRCL, the prosecution contends, confirmed the presence of commercial quantity of heroin in the said samples drawn from the contraband seized from the appellant- accused. 5 The appellant-accused, the prosecution reveals, gave statement under Section 67 of NDPS Act, 1985 (for short “the Act”) disclosing the facts leading to his apprehension with the contraband heroin on 23.5.2002. He gave particulars of his stay at Ellora Guest House at Borivali, Mumbai. DRI 6 Cri-Apeal-394-07 officers searched the room no.310 of Ellora Guest House and recovered therefrom a black bag belonging to the accused – Preetam Liladhar Namdeo on 23.5.2002. A copy of the guest house registered was also seized by DRI officers. On 29.7.2002, the appellant-accused made further disclosure in prison before the jailer and confirmed his earlier statement made on 23.5.2002. On being confronted with the extract of the entries of the register maintained by Ellora Guest House, the prosecution contended that the appellant-accused explained that relevant entries found in the said register were purposefully made in pseudonym to cover up his as well as identity of one Mubarak the supplier of the contraband. DRI Officer made further investigation with the Manager of the Ellora Guest house, sister of the accused and one Kuttubuddin Taherali, proprietor of Mohammedi Electricals, Mandsaur. 6 Co-accused Munna Hamid was tried along with 7 Cri-Apeal-394-07 the appellant-accused in the present case for criminal conspiracy to acquire, purchase, possession, store, transport the heroin, an offence punishable under Section 29 read with Sections 8C and 21 of the Act, and was acquitted by the trial court. It appears that only the present appeal against conviction of the appellant-accused- Preetam Liladhar Namdeo came to be preferred. 7 To prove the case, the prosecution examined PW-1 Vinod Tolani, the Seizing Officer, DRI (Exh.6); PW-2 Pandurang Madkaikar, Senior Intelligence officer, DRI (Exh.42); PW-3 Radhesham Mishra, Manager of Ellora Guest house; PW-4 Shriniwas Kulkarni, Superintendent of Central Excise, Mumbai (Exh.50); PW-5 Sujit Roy, receptionist of the guest house (Exh.54); PW-6 Dhiraj Sahni, panch (Exh.55); PW-7 Pradeepkumar Bhatnagar, CA (Exh.56); PW-8 Dilip Kedare (Exh.60); PW-9 Vinod Pisharody, Intelligence Officer, DRI (Exh.63), PW-10 Shailendra Bagherwal, 8 Cri-Apeal-394-07 Panch (Exh.67); PW-11 Palayan Verghese, Assistant Director of D.R.I (Exh.68); PW-12 Parmeshwaran Shankaran, Intelligence Officer, DRI (Exh.69); PW-13 Ahokkumar Sharma, Superintendent of Central Bureau of Narcotics (Exh.70); PW-14 Pushpa Halkara, sister of the accused (Exh.77); PW-15 Priscila Falcao, DRI Official (Exh.79), PW-16 Mulidhar Namdev, brother of the accused (Exh.81) and PW 17 Sonubapu Mundhe, Sr.Jailor, Authur Rd.Jail, Mumbai (Exh.88). 8 Compliance of Section 42 of the Act can be read from the conjoint reading of the evidence of PW-1 Vinod Tolani, PW-2 Pandurang Madkaikar, PW-11 Palayan Verghese, Assistant Director of D.R.I and the memo Exh.7. Mr. Ayaz Khan, for the appellant-accused has no quarrel over it. He, however, takes exception to compliance of Section 50 of the Act with reference to the seizure panchanama dated 23.5.2002 (Exh.9). He argued that there was failure to comply with the provisions of Section 50 of the said Act inasmuch as DRI Officers rushed to search the appellant-accused 9 Cri-Apeal-394-07 without there being appraisal of his right to be searched either in the presence of the Gazetted Officer or the Magistrate, and non compliance of Section 50 ought to have resulted in acquittal of the accused. In support of his submission, he cited the following judgments :- 1) 1998 ALL MR (Cri) 889 Shri Murata Chiharu Vs. State of Goa; 2) 2009(2) Bom.C.R. (Cri) 782 Union of India Vs. Shah Alam & Anr. 9 Mr.Ayaz Khan, learned Advocate for the appellant-accused further pointed out that with hostility of the panch witness PW-6 Dilip Sahni, the entire search and seizure lacked independent corroboration and as such the case must fail. 10 Mr.Saldanha, learned Advocate for the DRI countered the submissions by placing reliance on the judgments of the Hon’ble Apex Court delivered in the following cases: 10 Cri-Apeal-394-07 1)(2009) 12 Supreme Court Cases 205 State of Punjab Vs. Nirmal Singh; 2)(2009) 13 Supreme Court Cases 472 State of Punjab Vs. Surjit Singh & Anr.; 3) (2009) 1 Supreme Court Cases (Cri) 663 State of Haryana Vs. Mai Ram; 4) IV (2003) CCR 344 (SC) P.P. Fathima Vs. State of Kerala; 5) (2003) 8 Supreme Court Cases 666 Megh Singh Vs. State of Punjab; 6) (2007) AIR SCW 3921 State of Haryana vs. Suresh; 7) (2005) 4 Supreme Court Cases 350 State of Himachal Pradesh Vs. Pawan Kumar. 11 It is correct that PW-6 Dilip Sahni, panch witness turned hostile. A fact, however, remains that he was called from the vicinity of his communication centre known as Global Responding Call Centre situate opposite CBD Belapur bus-stand, Navi Mumbai and was taken to CGO Complex around 12.30 p.m. on 23.5.2002. It can also be seen from his evidence that he signed 11 Cri-Apeal-394-07 some papers and he was required to remain present at the said complex for one or two hours. PW-1 Vinod Tolani, DRI Officer was one of the person present at the said place. Even assuming that he did not contribute anything further to the prosecution case, one ought not to shut eyes to other evidence on record and if, the further evidence including the evidence of the official witnesses is found credible, the prosecution version does not become vulnerable due to failure of the independent witness to support it. This proposition has been validated by the Hon’ble Apex Court in the judgments reported in the case of State of Punjab Vs. Nirmal Singh [(2009) 12 Supreme Court Cases 205] and State of Haryana Vs. Mai Ram [(2009) 1 Supreme Court Cases (Cri) 663]. Similar view found favour with the Hon’ble Apex Court in P.P. Fathima’s case (Supra) while dismissing the appeal against conviction of the accused under Section 21 of the said Act i.e. seizure of 750 mgs of brown sugar in the case wherein the panch witnesses 12 Cri-Apeal-394-07 failed to support the prosecution. 12 The Hon’ble Apex Court in the case of Surjit Singh (Supra) even accepted the credible evidence of the official witnesses for conviction of the accused for the offence under NDPS Act, 1985, wherein the prosecution, for satisfactory reason, could not examine independent witness. 13 In Pawan Kumar’s case (Supra), the Full Bench of the Hon’ble Apex Court interpreted the phrase “search any person” occurring in sub-section-1 of section 50 of the Act and while doing so found that the N.D.P.S. Act, 1985 , Cr.P.C., 1973, IPC, 1860, and General Causes Act rendered no fruitful assistance for resolving the controversy over the meaning of the word 'person' in the phrase “search any person” and ultimately resorted to Rule of literal construction, and made the following observations:- 13 Cri-Apeal-394-07 “10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word “person” appears to be - “the body of a human being as presented to public view usually with its appropriate coverings and clothing”. In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one’s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body 14 Cri-Apeal-394-07 of the human being unless some specific effort in that direction is made. For interpreting the provision rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word “person” would mean a human being with appropriate coverings and clothings and also footwear. 11.A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the 15 Cri-Apeal-394-07 ambit of the word “person” occurring in Section 50 of the Act.” 14 It was the endorsement of the similar view expressed previously by the Hon’ble Apex Court in the case of Megh Singh (Supra) as well as Madanlal’s case [(2003) 7 SCC 465]. 15 In the instant case, the seizing officer PW-1 Vinod Tolani deposed that the contraband, which tested positive for heroin in field test, was recovered from green coloured cloth bag (Article 11/1) in possession of the accused, who alighted from the bus no.505 at CBD bus depot around 11.30 a.m. on 23.5.2002. PW-2 Madkaikar, Senior Intelligence Officer, DRI, accompanying PW-1 Tolani at the material time generally corroborated PW-1 Tolani with the testimony that the accused alighted from BEST bus with green coloured cloth bag (Article 11/1) in his hand and contraband-brownish colour powder packed in 12 transparent poly packets was found in the said 16 Cri-Apeal-394-07 bag. PW-4 Shriniwas Kulkarni, Supdt. of Central Excise, who joined the team of DRI officials apprehending the accused at Central Excise Office at CBD Belapur, Navi Mumbai also testified that the accused who was brought to the said Office by DRI officials was having green coloured cloth bag containing 12 packets of brown powder. These facts find corroboration in the panchnama (Exh.9). Pertinently, the seizure of the contraband was made from the green coloured cloth bag (Article 11/1) carried by the accused in the hand and it was not on the person, and therefore, the search of the said bag leading to the seizure of the contraband, in light of the interpretation of the phrase “search any person” occurring in Sub-Section-1 of Section 50 of the said Act as done by the Hon’ble Apex Court, cannot be termed as search of person occurring in the said Section. 16 Mr. Ayaz Khan, learned Advocate for the 17 Cri-Apeal-394-07 appellant-accused invited the attention of the court to a judgment of the Hon’ble Apex Court in Shah Alam’s case (Supra) in order to persuade this court to a contrary view. After having considered the ratio in Pawan Kumar’s case (Supra), the Division Bench of the Hon’ble Apex Court in Shah Alam’s case made the following observations : “ The legal proposition advance by Mr. Terdal, based on the distinction between search of someone’s person and the baggage carried by him/her is unexceptionable but his submission is not supported by the facts of this case. We have carefully gone through the records of this case. From the evidence of the complainant, PW.1 and the seizure memo (Farad Baramdegi) Ext. Ka 2 it is evident that the two respondents were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them and were recovered from there. The facts of the case in hand are very close to another decision of this Court in (Dilip and another Vs. State of M.P), 2007 (1) Bom. C.R. (Cri) 11(S.C.): 2006 DGLS (soft) 895:2007 DGLS (Cri) soft 20: 2007 (1) SCC 450 where it was observed in paragraphs 12,15 and 16 18 Cri-Apeal-394-07 as under: 12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of section 50 of the Act, although required in law, had not been complied with.” 15. Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case.” 16. “In this case, the provisions of section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW.10 to comply with the said provisions. It was not done.” 17 Pertinently in Shah Alam’s case, the contraband was recovered from the shoulder bags in course of a body search. In the instant case, body search had not commenced and contraband was detected 19 Cri-Apeal-394-07 in the cloth bag, no sooner the accused alighted from the CBD bus depot. Shah Alam’s case, therefore, has no application to the facts of this case. Having said so, it is needless to state that Section 50 of the Act has no application in the present case of detection of contraband in the bag carried by the accused. 18 The next question that falls for consideration is regarding the seized material which was recovered from the green bag (Article 11/1) carried by the appellant-accused. The learned trial court wholeheartedly believed the testimonies of PW 1 Tolani and PW 2 Madkaikar, Officers of DRI on the background of the circumstances then obtained at the time of the seizure. PW 1 Tolani, Intelligence Officer, DRI, deposed that on interception of the appellant-accused at the CBD Bus Depot, they noticed 12 transparent poly bags containing brown coloured powder in the said green coloured bag (Article 11/1) 20 Cri-Apeal-394-07 and some powder taken out from one of the poly bags tested positive for heroin in the test carried out with the help of Field Testing Kit. He added that after waiting at the CBD Bus Depot for the person, who was to take delivery of the contraband from the appellant-accused, they took the accused to the Central Excise Building, Mumbai at CGO Complex, CBD Belapur along with the said bag containing the said Poly bags with brown colour powder. Pertinently, PW 2 Madkaikar remained silent about the Field Test carried out at the CBD Bus Depot. 19 Evidence discloses that PW 4 Shriniwas Kulkarni from Central Excise joined the search and seizure operation and happened to witness the proceedings. PW 4 Kulkarni, according to the learned Advocate Saldanha for the respondent DRI, affords independent corroboration to the search and seizure operations leading to the seizure of contraband heroin from the green bag (Article 11/1) carried out 21 Cri-Apeal-394-07 by the appellant and as such, the recovery of 6.168 kg. heroin from the appellant-accused needs to be believed. PW 4 Kulkarni deposed that the search of the appellant-accused was taken in his presence at Central Excise Office, CBD, Belapur, on 23rd May, 2002 and 12 poly bags containing brown powder weighing about 6 kgs. besides a railway ticket (Article 3), key chain (Article 4) with one key (Article 5) and some cash amount were recovered from the possession of the appellant-accused. 20 He added that after drawing some samples from the heroin recovered from the said bag, the samples were duly sealed and the green bag (Article 11/1) and 12 empty polythene bags were put in the tin box and sealed. He testified that seizure panchnama (Exhibit 9) was drawn in his presence and he subscribed his signatures along with panchas, officer and the appellant-accused to its last page. He identified endorsement made by him at the bottom of the panchnama (Exhibit 9). Endorsement, which appears at 22 Cri-Apeal-394-07 the bottom of the panchnama (Exhibit 9) as well as the entry in the register maintained in regular course of business in the office of PW 4 Kulkarni bears record of the fact of the presence of the PW 4 Kulkarni in the office of the Central Excise CBD Belapur at the material time. Cross-examination of the PW 4 Kulkarni done in respect of the entry (Exhibit 52) makes no difference with the fact of the presence of PW 4 Kulkarni thus revealed in the evidence. However, a close scrutiny of the evidence of PW 4 Kulkarni reveals that it is a cryptic version of the search and seizure operations as compared to the evidence of PW 1 Tolani. Curiously, PW 4 Kulkarni deposed “By testing they found that it was Heroin powder.” when PW 4 Kulkarni figured in the seizure operations at the Central Excise Office, CBD Belapur, after the Field Test was conducted according to PW 1 Tolani at CBD Bus Depot. 21 Learned Advocate Ayan Khan for the appellant- 23 Cri-Apeal-394-07 accused inviting attention to the standing instruction no.1/88 issued by Narcotics Control Bureau, New Delhi, submitted that there were gross and material violations of the said instructions particularly instruction nos.1.5, 1.7(e), 1.9, 1.10 and 1.14 thereby rendering entire search and seizure operation bad in law or in the least a suspect. 22 Firstly, learned Advocate Mr.Ayaz Khan for the appellant-accused pointed out that the samples from the contraband seized were not drawn on the spot and recovered in contravention of the instruction no. 1.5. Secondly, that the sample in duplicate was not drawn from a particular lot as stipulated under instruction no. 1.7(e). Thirdly, signatures of all the persons i.e. the accused, panch witnesses and the seizing officer were not obtained on the envelopes containing the samples as required under instruction no. 1.9. Fourthly, the envelope containing the duplicate sample bearing legible seals on it was not 24 Cri-Apeal-394-07 kept along with test memos in another sealed envelope and marked “Secret-drug sample of the test memo” for being sent to the concerned chemical laboratory as per instruction no.1.10. Fifthly, a Register of Samples to monitor the progress of testing was not maintained as per instruction 1.14. 23 Perusal of the evidence of PW 1 Tolani, the Seizing Officer reveals the following facts :- 1) Samples were not drawn at the CBD Bus Depot where the appellant-accused was intercepted with the contraband but were drawn at the office of the Central Excise, CBD Belapur. 2) Sampling was not done as per instruction 1.7 inasmuch as the contraband in 12 packs was divided in 2 lots – pack nos.1 to 6 and pack 25 Cri-Apeal-394-07 nos.7 to 12 – powder from each lot was mixed separately and 2 samples from each of such separate mixtures of powder were drawn and collected in 2 separate poly bags. 3) Signatures of the accused and seizing officer were not obtained on the envelopes containing the samples. 4) Original samples from each lot i.e. Article 1/1 and Article 2/1 were sent to Dy.CC with the test memos in triplicate (Exhibits 18 and 19) and covering letter (Exhibit 17) but not both the envelopes and test memos were kept in another sealed envelope as per instruction 1.10. As regards sample sent to CRCL, it was sent with covering letter and test memos in 26 Cri-Apeal-394-07 triplicate