CR.A/1063/2000 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1063 of 2000 WITH CRIMINAL APPEAL No. 1073 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA Sd/- HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ================================= == 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================== ANWARBEG AMIRBEG MIRZA @ ANWAR AZIZ MIRZA - Appellant Versus STATE OF GUJARAT & 1 - Opponents =================================== CR.A/1063/2000 2/38 JUDGMENT Appearance : 1. CRIMINAL APPEAL NO. 1063 of 2000 MR MM TIRMIZI for Appellant. MR KT DAVE, APP for Opponent No. 1. MRS VASAVDATTA BHATT for Opponent No. 2. 2. CRIMINAL APPEAL NO. 1073 of 2000 MR MJ BUDHBHATTI for Appellant. MR KT DAVE, APP for Opponent. MRS VASAVDATTA BHATT for Opponent No. 2. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 16/11/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K. A. PUJ) 1. Since both these appeals are separately filed by the appellants – original accused in Sessions Case Nos. 271 & 60 of 2000 which were decided by a common judgment and order of the learned Additional Sessions Judge, Ahmedabad on 20.10.2000 and since both these appeals are heard together, they are being disposed of by this common judgment and CR.A/1063/2000 3/38 JUDGMENT order. 1. Criminal Appeal No. 1063 of 2000 is filed by Anwarbeg Amirbeg Mirza @ Anwar Aziz Mirza, the accused in Sessions Case No. 271 of 2000 against his conviction for an offence punishable under Section 8 (c) read with Section 20 (b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”), sentencing him for R.I. of 10 years with fine of Rs.1 Lac and in default thereof, to undergo S.I. of one year. 2. Criminal Appeal No. 1073 of 2000 is filed by Mr. Surajsinh Harjansing Jadon, the accused in Sessions Case No. 60 of 2000 against his conviction for an offence punishable under Section 8 (c) read with Section 20 (b) and 29 of the Act, sentencing him for R.I. of 10 years with fine of Rs.1 Lac and in default thereof, to undergo S.I. of one year. 3. The facts of the case have been detailed in the order and judgment of the learned Additional Sessions CR.A/1063/2000 4/38 JUDGMENT Judge, Ahmedabad and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in these appeals are as under :- 4. The complainant – Jitendrabhai N. Raghuvanshi, an Intelligence Officer of the Narcotic Control Bureau, Zonal Unit, Ahmedabad had received a specific information on 11.11.1999 regarding storage of narcotic drugs at the residential premises of Shri Surajsingh Jadon - appellant – accused in Criminal Appeal No. 1073 of 2000, at 7, Govind Park Society, Nr. Vijay Nagar, Navrangpura, Ahmedabad. The said narcotic drugs were being stored for Mr. Anwar Mirza, the appellant – accused in Criminal Appeal No. 1063 of 2000 resident of Patwa Sheri. The said information was reduced in writing and was brought to the notice of superior officer i.e. Mr. P.S. Tomar, Zonal Director, NCB, Ahmedabad. In pursuance of this information, a search warrant was issued by the Zonal Director, NCB, Ahmedabad and raid was CR.A/1063/2000 5/38 JUDGMENT carried out. Prior to the same, however, surveillance at different point on the entrance of the society had been arranged. The officers of NCB reached the entrance road of Govind Park Society and two local panchas were called at the said place at around 17.00 hours. The panchas were appraised of the information. The staff and officers of NCB, Ahmedabad offered their personal security to the panchas which was denied by them. At around 17.20 hours, one young person supposed to be Anwar Mirza, medium built and having fair complexion and the beared was seen on a black coloured Kinetic scooter. The officers of NCB tried to stop him but he immediately fled the scene and was able to escape. 5. It is also the case of the prosecution that all officers of NCB present and panchas thereafter reached at the premises, namely, 7, Govind Park Society, Nr. Vijay Nagar, Navrangpura, Ahmedabad and it was learnt that the person who escaped came to meet Mr. Suraj Singh who was residing at first floor of the premises. The officers, staff and panchas entered CR.A/1063/2000 6/38 JUDGMENT first floor of the said premises and Mr. Suraj Singh was found present in the premises. All the officers introduced themselves and Mr. Suraj Singh was informed that he and his residential premises was to be searched and was also informed that the same could be carried out in presence of a Gazetted Officer or a Magistrate, if he desire so. 6. He was also informed that the Zonal Director Mr. P.S. Tomar who was present, was a Gazetted Officer, on which the said Suraj Singh agreed to be searched in presence of him. All the officers then offered their personal search to Mr. Suraj Singh which was denied by him. On inquiring about any storage of narcotic drugs in his premises, the appellant after thinking for a while walked towards a steel container kept in the kitchen. The same was found locked and opened by the appellant himself. He took out two bags from the container. One was a blue and red coloured and the other was a plastic bag which had a chain to open and and was of design markings. First bag was opened and three packets covered in CR.A/1063/2000 7/38 JUDGMENT English newspaper were found, which were tied by plastic thread. On opening the second bag, three packets were found in which one packet was wrapped with English newspaper and the other two packets were wrapped with plastic thread. Other two packets were in transparent polythene bag. All packets were opened and the substance found was tested with drug detection kit which answered positive for the presence of charas, a narcotic substance. All the packets found were weighed by the NCB Officers with the electronic weighing machine. The gross weight of the substance was total 8.36 Kgs. All the packets were opened and the substance was weighed which was of black green colour and round in shape and of different sizes. Net weight of the substance was found to be 8.062 Kgs. The investigating team thereafter has drawn three samples of 25 Grams each and sealed in presence of the panchas. The remaining substance was also packed and sealed in the presence of the panchas. Accordingly, panchnama was drawn and concluded on 11.11.1999. CR.A/1063/2000 8/38 JUDGMENT 7. It is also the case of the prosecution that the appellant – original accused No. 1 was summoned under Section 67 of the Act and his statement was recorded on 11.11.1999. In the statement, he has stated that he came in contact with Mr. Anwar three years prior to the date of incident who was involved in drug trafficking and selling of charas. Mr. Anwar gave him the contraband article on the very same day i.e. 11.11.1999 for storage. Accordingly, summons were issued under Section 67 of the Act to Mr. Anwar Mirza on 15.11.1999, 15.12.1999 and 24.12.1999, but he did not appear on the due dates. The complainant, therefore, lodged the complaint against the appellant – orig. accused No. 1 on 01.02.2000 under Section 8 (c), 20 (b) and 29 of the Act and the same had been registered as Sessions Case No. 60 of 2000. 8. It is further the case of the prosecution that the complainant received the information on 24.06.2000 that one person suspected as being accused was CR.A/1063/2000 9/38 JUDGMENT present at Mehsana where, he was under inquiry of the police. The complainant, therefore, went there and on preliminary inquiry, he found that the suspected accused was the same person who was wanted in the incident of 11.11.1999. Summons was issued to him under Section 67 of the Act and when he volunteered to accompany him to NCB office, his statement on the very same day was recorded and his further statement was recorded on 25.06.2000 and he was arrested after following due procedure and intimation of the same was also sent to his family members. Complaint with regard to accused No. 2 has been filed subsequently on 24.07.2000 which was registered as Sessions Case No. 271 of 2000. 9. Since both the complaints were said to have arisen out of the same incident, Sessions Case No. 271 of 2000 was tagged with Sessions Case No. 60 of 2000 and with a special order, both these cases were tried and heard together as per the order passed below Exh. 2. The learned Additional Sessions Judge on CR.A/1063/2000 10/38 JUDGMENT the basis of the averments and allegations made in the complaint, framed charge against the accused No. 1 on 10.04.2000 and on arrest of accused No. 2, the charge was again framed on 20.07.2000. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. 10.In order to bring home the charge framed against the accused, prosecution has examined in all three witnesses and relied upon their oral testimonies. The details of these witnesses are as under :- P.W. 1 – Pradipbhai Babulal Patel - Exh. 11 P.W. 2 - Devdattbhai Nanalal Oza - Exh. 14 P.W. 3 - Jitendrabhai Niranjanlal Raghuvanshi - Exh. 30 11.The prosecution has also placed reliance on the following documents to prove the culpability of the accused. CR.A/1063/2000 11/38 JUDGMENT Sr. No. Exh. No. Particulars 01. 25 Report under Section 42 (2) of the Act dated 11.11.1999. 02. 13 Search warrant issued by the Zonal Director dated 11.11.1999. 03. 16 Notice under Section 50 of the Act to accused No. 1 dated 11.11.1999. 04. 12 Panchnama dated 11.11.1999. 05. 17 Documents seized during search on 11.11.1999. 06. 18 Summons under Section 67 of the Act issued to the accused No. 1 dated 11.11.1999. 07. 19 Statement of the accused No. 1 recorded under Section 67 of the Act on 11.11.1999. 08. 20 Arrest memo of the accused No. 1 dated 12.11.1999. 09. 21 Intimation of arrest of the accused No. 1 dated 12.11.1999. 10. 23 Forwarding letter of sending of drug samples to FSL, Ahmedabad and CRCL, New Delhi along with test memos dated 12.11.1999. 11. 24 Receipt of samples sent to FSL, Ahmedabad and CRCL, New Delhi dated 12/13.11.1999. 12. 22 Report under Section 57 of the NDPS Act to Zonal Director, NCB, Ahmedabad dated 12.11.1999. 13. Mark A Report under Section 57 of the NDPS CR.A/1063/2000 12/38 JUDGMENT Sr. No. Exh. No. Particulars Act to DDG (E), NCB, New Delhi dated 12.11.1999. 14. 25 Summons issued to accused No. 2 and intimation letter dated 12.11.1999. 15. 26 Copy of summons issued to accused No. 2 dated 15.11.1999. 16. 33 Chemical report received from FSL, Ahmedabad dated 22.11.199. 17. 31 Summons issued to accused No. 2 and intimation letter dated 15.12.1999. 18. 32 Summons issued to accused No. 2 by Regd. Post and original summons received back dated 20.12.1999. 19. 34 Forwarding letter and chemical report received from CRCL, New Delhi on test memo dated 11.02.2000. 20. 35 Summons under Section 67 of the Act issued to accused No. 2 dated 24.06.2000. 21. 36 Statement of accused No. 2 recorded under Section 67 of the Act on 24.06.2000. 22. 37 Statement of accused No. 2 recorded under Section 67 of the Act on 25.06.2000. 23. 38 Arrest memo of accused No. 2 dated 25.06.2000. 24. 39 Report under Section 57 of the Act dated 26.06.2000. 25. 40 Intimation of arrest of accused No. 2 CR.A/1063/2000 13/38 JUDGMENT Sr. No. Exh. No. Particulars dated 27.06.2000. 12.After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge explained to the accused the circumstances appearing against them in the depositions of the witnesses. Thereafter, further statements of the accused were recorded under Section-313 of the Code. In further statement also they denied the prosecution case in toto and reiterated that they are innocent and they have not committed any offence and that they have been falsely implicated in the offence punishable under the Act. The accused No. 1 had led an evidence of his wife in defence and she has been examined as D.W. 1 at Exh. 43 wherein she has stated that her husband was falsely implicated in the offence. The accused No. 2 has, however, not led any evidence in defence nor he examined himself on oath. CR.A/1063/2000 14/38 JUDGMENT 13.On appreciation, evaluation and analysis of the evidence adduced by the prosecution, the learned Additional Sessions Judge held that the prosecution has proved beyond doubt that all the accused have committed offence under Sections-8(c) read with Section 20 (b) and 29 of the Act and resultantly the learned Additional Sessions Judge has convicted and sentenced the accused to which reference is made in earlier paragraphs of this judgment, which has given rise to these two appeals. 14.Mr. Bhddhabhatti, learned advocate appearing in Criminal Appeal No. 1073 of 2000 for the appellant – original accused No. 1 has submitted that the appellant was wrongly convicted and sentenced under the provisions of the NDPS Act as the case against the appellant was not proved beyond reasonable doubt, in absence of any evidence whatsoever connecting the appellant with the crime. He has further submitted that the mandatory provisions of the Act have not been properly complied with and in that view of the matter, the CR.A/1063/2000 15/38 JUDGMENT appellant ought to have been acquitted from the charges levelled against him in view of the judgment of the Hon'ble Apex Court as well as of this Court. He has further submitted that the information received by the Intelligence Officer of the NCB, Ahmedabad which was said to have been reduced in writing was not produced on the record for the perusal of the Court which has led to grave miscarriage of justice and has caused great prejudice to the appellant. The learned Additional Sessions Judge has committed grave error by observing that the prosecution has produced the information reduced into writing in the form of a report under Section 42 (2) of the Act and hence, the mandatory provision has been complied with. The learned Additional Sessions Judge has failed to appreciate that Section 42 (2) requires that the information which has been reduced in writing should be produced and not the report of the information which was sent to the superior Officer thereafter. Here in the present case, what has been produced on record is the report under Section 42 CR.A/1063/2000 16/38 JUDGMENT (2) to the superior Officer Mr. Tomar and not the information which was reduced to writing. The report of the information reduced to writing cannot be considered to be the same under the law. He has further submitted that the superior officer who was also a Zonal Director of NCB and under whose direction and guidance, the raid was organized, has not been examined by the prosecution at all. His non-examination by the prosecution has caused great prejudice to the appellant. It is the case of the prosecution that the appellant was informed about his right of search being carried out in presence of Executive Magistrate or a Gazetted Officer. Since the said raid was carried out in presence of Mr. Tomar as Gazetted Officer, the prosecution ought to have examined such an important witness. He has further submitted that the appellant was never informed that Mr. Tomar was a member of the raiding party and that he was a Gazetted Officer. He has, therefore, submitted that the provisions contained in Section 50 of the Act have not been complied with. CR.A/1063/2000 17/38 JUDGMENT 15.Mr. Buddhabhatti has further submitted that Mr. D.N. Oza – P.W. 2 was an Investigating Officer and hence, he could not have recorded the statement of the accused under Section 67 of the Act as it is directly in violation of the provisions contained in Section 53-A of the Act. He has further submitted that the information was received by the Intelligence Officer of NCB at 11.00 a.m. and the entire raid was taken place at about 16.30 p.m. which is highly improbable and unbelievable. The steel container and the lock and keys from which the contraband articles were alleged to have been received were neither seized nor produced before the Court as evidence. The truthful version of the defence witness who was the wife of the appellant and was examined by the appellant as a defence witness was not accepted by the learned Additional Sessions Judge and instead of appreciating the probative value of the deposition, has discarded the said evidence by pointing out minor discrepancies and omissions therein. The further statement of the CR.A/1063/2000 18/38 JUDGMENT appellant recorded after the closure of the pursis, clearly indicates that the appellant has been falsely cropped in by P.W. 2 by calling him under the pretext of colour work since the appellant was working as a Contractor. The appellant had further alleged that the panch Chandrakant had strain relations with the appellant and, therefore, had deliberately given false evidence against him. The search warrant Exh. 30 was prepared subsequently at the time when the raid was carried out. In search warrant, the name of the appellant was written by handwriting of the officer of the Narcotic Cell which raised very serious doubt against the genuineness of the incident. The report under Section 42 (2) Exh. 15 raises very serious doubt about its genuineness. The name of the appellant and his address was mentioned in it and it was written at about 12.00 hours. It, therefore, clearly indicates that the said document was prepared after the raid was carried out. The alleged statement of the appellant recorded under Section 67 Exh. 19, was recorded under threat, duress and coercion and it was not a CR.A/1063/2000 19/38 JUDGMENT voluntary statement. It was clearly stated in the further statement recorded under Section 313 of the Code. He has, therefore, submitted that no reliance could have been placed by the prosecution on the alleged statement of the appellant recorded under section 67 of the Act. Even otherwise, the said statement was not a voluntary one and it was retracted subsequently. Based on the aforesaid submissions, Mr. Buddhabhatti has strongly urged that the appeal of the appellant deserves to be allowed and the appellant is required to be acquitted forthwith. 16.Mr. M.M. Tirmizi, learned advocate appearing for the appellant – accused No. 2 in Criminal Appeal No. 1063 of 2000 has submitted that the information was received by the Intelligence Officer of the NCB, P.W. 2 at 11.00 a.m. on 11.11.1999 to the effect that the narcotic drugs were being stored for/by Shri Anwar Mirza resident of 1458 Rangrej Pole Patwa Sheri, Relief Road, Ahmedabad at the place of Suraj Sing Jodan at 7, New Govind Park Society, Vijaynagar, CR.A/1063/2000 20/38 JUDGMENT Naranpura, Ahmedabad. The Intelligence Officer took 2 to 4 hours to manage for the manpower for the raiding party and the testing kit etc. and reached the scene of offence at around 04.00 p.m. The officer of the Anti-Terrorist Squad were also informed to reach straight at the gate of the society. Thus, they, in fact, were waiting for the appellant to reach the scene of offence and deliver the contraband articles. But even after making such elaborate preparation and waiting in surveillance, they could not catch the appellant in the house of the Suraj Sing Jodan nor while he left, although an attempt was made to catch him. Thus, it is very doubtful that the appellant had, in fact, gone to the scene of offence for delivering the contraband articles as alleged and neither of the persons in surveillance had seen him. As per the statement of the original accused No. 1, the name of the appellant accused No. 2 is Anwarbeg Amirbeg. However, in the entire case, the name of the accused is referred as Anwarbeg Azigbeg. Thus, there is vast discrepancy in the name of accused. More over, at CR.A/1063/2000 21/38 JUDGMENT the time when the judgment was pronounced, the appellant – accused No. 2 himself was absolutely in imbalanced mind and, therefore, unfortunate incident had occurred for which the appellant tendered an unconditional apology to the Court. Even in the statement of the co-accused, only the name of Anwar appeared and the panchnama allegedly drawn at the scene of offence contained the name of Anwar Mirza. Moreover, it is not clear from the statement of the co-accused that this very appellant was engaged in the alleged offence. The summons admitted to be served on the appellant – accused No. 2 bore different addresses and hence, it could not have been inferred that the investigating agency was so sure as to which accused they are looking for. The appellant was arrested after being brought from Mehsana where he was apprehended by the Mehsana police and was under investigation on the basis of information received by Mr. P.S. Tomar, Zonal Director, NCB. However, no formalities had been observed while bringing the appellant from Mehsana and the Investigating CR.A/1063/2000 22/38 JUDGMENT Officer Mr. J.N. Raghuvanshi deposed that he was handed over merely on his giving his introduction to the police officer at Mehsana and the statement of appellant was recorded at NCB Office which took 4 to 5 hours and he was allowed to go at 8.00 to 8.30 p.m. and he was required to report in the next morning wherein he has given his further statement. The said statement has been retracted by the appellant – accused No. 2 on 07.07.2000 alleging that he was mercilessly beaten for the whole night and his thumb impression had been taken on the alleged statement. No reliance could have been placed on this retracted statement. The appellant has been convicted only on the basis of the statement of the co-accused. However, no incriminating substance has been found from the appellant during the investigation. No attempt has been made to corroborate the confessional statement of the appellant with the independent evidence so as to implicate him in such a serious offence. He has, therefore, submitted that the impugned judgment and order of the learned Additional Sessions Judge is CR.A/1063/2000 23/38 JUDGMENT required to be quashed and set aside. 17.Mrs. Vasavdatta Bhatt, learned Central Government Counsel appearing for the Narcotic Control Bureau in both these appeals, on the other hand, has strongly supported the case of the prosecution and submitted that the learned Additional Sessions Judge after appreciation of facts and considering the relevant statutory provisions and on applying the decided cases to the facts of the present case, has come to the just and proper conclusion and rightly convicted both these accused and hence, this Court should not disturb the finding and conclusion arrived at by the learned Additional Sessions Judge. She has further submitted that by voluminous evidence produced by the prosecution, the complicity of both these accused is proved beyond reasonable doubt. The contraband article charas was found from the house of the accused No. 1 and the house of the accused No. 1 was used for storage of contraband articles delivered by the accused No. 2. She has further submitted that while taking out search of the CR.A/1063/2000 24/38 JUDGMENT house of the accused No. 1 and seizing the contraband articles, all necessary formalities have been observed by the raiding party. The provisions contained in Section 42 as well as 50,