1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.162 OF 2001 Anil Kothari s/o Narendrasingaji Kothari, Resident of 8, Ganesh Ghad Road, Shastri Nagar, Ajmer, Rajasthan .. Appellant. Vs. 1.C.B.I., EOW, Bombay .. 2.The State of Maharashtra .. Respondents. WITH CRIMINAL APPEAL NO.352 OF 2001 Union of India .. Appellant. Vs. 1.Ram Pratap Singh s/o Narayan Singh, R/o. Diggi House, Rambaug, Jaipur, Rajasthan .. 2.Abid Ali @ Munna Bhai s/o. Nawab Ali, R/o. 1024, Lohar Khura, Jaipur, Rajasthan. .. 3.The State of Maharashtra .. Respondents Mr.Nitin Pradhan alongwith Ms.Subhada Khot, advocate for the appellant in Cri.Appeal No.162 of 2001. Mrs.Revati Mohite-Dere with Mr.Mandar Goswami, advocate for the appellant in Cri.Appeal No.352 of 2001 and for respondent no.1 in Cri.Appeal No.162 of 2001. S 2 Mr.Harshad H.Pandya, Senior Advocate with Mrs.Sharmila Kaushik, advocate for respondent no.1 in Cri.Appeal No.352 of 2001. Mr.P.A.Pol, P.P. for the State. CORAM : B.H.MARLAPALLE & U.D.SALVI, JJ. DATED : 8th and 9th MARCH, 2011. ORAL JUDGMENT: (PER B.H.MARLAPALLE, J.) 1. In N.D.P.S.Special Case No.363 of 1998 and N.D.P.S.Special Case No.279 of 1999 a common judgment was rendered by the learned Special Judge under the N.D.P.S.Act and accused nos.2 and 3 came to be acquitted whereas accused no.1 came to be convicted for the offences punishable under section 20(b) and 29(i)(1) read with section 8(c) of the N.D.P.S.Act and he has been sentenced to undergo R.I. for a period of 12 years and also to pay the fine of Rs.2,00,000/- (Rs.Two lacs). This order of conviction and sentence has been challenged by accused no.1 in Criminal Appeal No. 162 of 2001 and the order of acquittal passed against accused nos.2 and 3 has been challenged by the Union of India in Criminal Appeal No.352 of 2001. Accused no.1 is undergoing sentence as aforesaid as he was denied bail in this appeal. 2. As per the prosecution case P.W.1 – Pradip Suryawanshi, Inspector from CBI, EOW, Mumbai had received a specific and reliable information on 15.6.1998 that 46 cartons containing Narcotic drugs under the garb of consignment of leather jackets was under 3 transportation from Jaipur (Rajasthan) to Mumbai through M/s. International Cargo Carriers (for short “ICC”) and the consignment was sent by All Rajasthan Cottage Industries, Jaipur to M/s.Star Exports, Mumbai. After completing the formalities, the team headed by P.W.1 with two independent witnesses visited the godown of ICC situated at Ambika Terrace, Clive Road, Dana Bunder, Mumbai on the same day before 18.00 hours. The said team physically verified 46 cartons lying at the godown of ICC and completed formalities of search, seizure and recovery in presence of the employees of ICC and the Superintendent of CBI Shri H.M.Gupta (P.W.13) and two officers from the Narcotic Control Bureau (NCB). The panchnama at Exhibit-33 was drawn and on verification it was noticed that out of 46 cartons, 34 were found to contain Charas (Hashish) and remaining 12 cartons were found to contain assorted leather jackets and other garments. The substance found in the cartons was specifically tested and confirmed that it was Hashish (Tetra Hydro Canabinol - THC) Narcotic drug and weight of the substance was 845.2 Kgs. Two samples of 50 gm from each carton were drawn and thus 68 samples were packed, stapled and the remaining quantity of NDPS substance was repacked. Office premises of ICC was thoroughly searched and about 28 documents pertaining to 48 cartons were also seized including delivery register, running into 17 pages. The offence vide C.R.No.RC-4/E/98 was registered on 16.6.1998 at about 18.00 hours against M/s. Rajasthan Cottage Industry, jaipur and Proprietor/Partner of M/s.Star Exports, Jodhpur and other unknown 4 persons. 3. Simultaneous follow up action was taken at Jaipur by Mr.H.M.Gupta on instructions of the Superintendent from Mumbai and the owner of ICC was interrogated alongwith one Shantilal Jain (P.W.13). The premises of M/s.All Rajasthan Cottage Industry at Jaipur were also searched. The investigation was thereafter entrusted to Shri Suresh (P.W.35), Inspector, CBI, EOW, on 17.6.1998 and he visited Jaipur on 26.3.1998 and took charge of the day book and other documents in the office premises of ICC. Shri Moolsing Omkar Singh (P.W.17) carried search at the residential and office premises of accused no.2 as well as at the residence of accused no.3 on 16.6.1998 and 17.6.1998 (Exhibit-110 and 111). From the premises of accused no.3, Rs.1,68,950/- was recovered. The premises of accused no.1 were also searched on 7.8.1998 by P.W.35 - Shri Suresh (Exhibit-150). Accused no.2 – Rampratap Singh appeared before the CBI on 17.8.1998 and he was arrested and accused no.3 came to be arrested on 21.8.1998. A Contessa car was seized at Delhi (Exhibit-208). On 28.8.1998 in the search carried out at the residence of the daughter of accused no.1, a photograph of accused no.1 was collected under panchnama at Exhibit-189. Accused no.1 could not be apprehended and, therefore, the charge-sheet was filed against accused nos.2 and 3 on 11.11.1998 giving rise to NDPS Special Case No.363 of 1992. The application for proclamation was moved before the Chief Judicial Magistrate at Jaipur on 22.12.1990 against accused no.1 for his appearance and consequently, he was apprehended on 5 2.6.1999. On 26.8.1999 on further investigation supplementary charge-sheet was filed against accused no.1 which resulted into NDPS Special Case No.279 of 1999. As both the cases arose from the same incident and in the same C.R., both of them were clubbed together and tried. The charge which was framed against accused nos.2 and 3 at Exhibit-17 was reframed at Exhibit-21 against all the accused. The prosecution examined in all 44 witnesses and produced 29 articles. Accused no.2 examined Ram Prasad Brijlal Vyas, a legal practitioner from Jaipur (Exhibit-296) and through this witness produced a register in respect of the proceedings of the trust of Kalyan Maharaj temple in which accused no.2 was one of the trustees, so as to show that accused no.2 was at village Diggy attending religious ceremony during the relevant period. By the detail order passed on an application at Exhibit-281, the defence was allowed to inspect the muddemal property which was lying with the prosecution and by a purshis at Exhibit-286, pursuant to the order dated 7.11.2000, the prosecution produced 11 cartons chosen by the advocate of accused no.1. 4. The Special Court considered the case of the prosecution as well as the sole witness examined by accused no.2 and held that the CBI Officers, who had carried out the investigation in this case being of the status of Police Inspector, Dy. S.P. and S.P., were the empowered and authorised officers to carry out investigation for the offences under Chapter IV of the NDPS Act. It further held that, 6 (i) there was compliance of the requirement under section 42(1) and section 42(2) of the NDPS Act, (ii) search and seizure carried out on 15.6.1998 and 16.6.1998 was duly proved, and (iii) the substantial testimony of P.W.1, P.W.2, P.W.3, P.W.16 and P.W. 30 established that in their presence all the boxes were sealed at ICC godown by applying NS-1 CBI seal and the difference in weight pointed out by the defence after seizure, was in no way damaging the prosecution case. The Special Court further held that the charge of conspiracy could not be established by the prosecution against accused nos.2 and 3 and the prosecution case proved it only against accused no.1 and thus accused no.2 and 3 came to be acquitted. 5. In the appeal filed by accused no.1 we are required to examine whether the circumstances relied upon by the Special Court are sustainable on the basis of the evidence of all the relevant witnesses. The prosecution claimed that accused no.1 had procured, stored, transported for marketing 34 cartons containing Hashish and with a weight of 845 Kgs. from Jaipur to Mumbai for its onward export in the international market and under the garb that the cartons were containing leather goods. It was submitted by Mr.Pradhan, the learned counsel for the accused that once the trial Court acquitted accused nos.2 and 3 it had to discard the theory of conspiracy as there was no evidence worth reliable which was placed before the trial Court by the prosecution to prove that accused no.1 7 had procured the contraband including the circumtance of storage of the said material in the premises/godown of accused no.2. Admittedly, accused no.3 was the driver of accused no.2. 6. As per the prosecution, the contraband cartons were stored by accused no.1 in the premises/godown of P.W.7 – Kalyansingh Kothari and from the said premises they were transported to the premises of ICC, Jaipur on 11.6.1998. In support of this circumstances the prosecution examined P.W.7 – Kalyansingh Kothari and his wife P.W.12 Smt.Hansa Kothari. As per the prosecution, P.W.13 – Shantilal Jain had accompanied accused no.1 on 11.6.1998 on a two wheeler so as to visit the office of ICC and at the first instance both of them met P.W.6 – Bholuram and finalised with him transportation of the cartons from Jaipur to Mumbai. While they were leaving the premises of ICC they met the owner i.e. P.W.11 – Rajkumar Ajmera. In the afternoon on 12.6.1998 accused no.1 transported cartons in Tata mobile vehicle and they unloaded in the truck in premises of ICC. In support of this circumstance, the prosecution has relied upon evidence of P.W.5 – Durga Prasad, P.W.13 Shantilal Jain, P.W.11 - Rajkumar Ajmera, P.W.3 – Rajeshkumar Pandya, P.W.44 – Chuttankhan, driver of the truck, P.W.10 – Mahendra Kumar Shah and P.W.6 Bholuram Choudhary. The prosecution has also relied upon one more circumstance i.e. stay of accused no.1 at Hotel Kalyan and in respect of same the prosecution examined P.W.15 Manoj Gupta, manager of the hotel and P.W.19 – Roopsingh, Receptionist at the hotel, P.W.7 – Kalyansingh, P.W.20 – Bhawani 8 Shankar, Chief Judicial Magistrate, Jaipur and P.W.21 – Surya Prasad, Handwriting expert. On analysing evidence of the prosecution the trial Court held that the following circumstances were proved against accused no.1. P.W.5 – Durga Prasad denied to have seen accused no.1 in the company of P.W.13 – Shantilal Jain in ICC office on 11.6.1998 but he accepted the loading of 46 cartons by truck so as to transport by road to ICC office at Mumbai, on that day. (i) Stay at Hotel Kalyan from 16.5.1998 to 23.5.1998, 24.5.1998 to 27.5.1998 and 4.6.1998 to 11.6.1998. (ii) P.W.3 - Pandya taking accused no.1 to ICC office. (iii) Cartons were stored at the house of P.W.7 – Kalyan Singh. (iv) Accused no.1 had supervised loading opertion of the cartons in the truck at ICC office premises at Jaipur. (v) Recovery of original Bill-T of consignment. (vi) Use of mobile phones during relevant period. 7. Section 8(c), 20(b) and 29(1) of the NDPS Act read as under: 8(c) “No person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export interi-State, import into India, export from India or tranship any narcotic drug or psychotropic substance; except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, 9 imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation.” 20(b) “Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:- produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b) -- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. 29(1) “Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. 8. As per section 8(c) there is a prohibition for production, 10 manufacture, possession, sale, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of said Act or the rules or orders made thereunder. Section 20(b) states “Whoever, in contravention of any provision of the Act or any rule or order made or condition of license granted thereunder:- produces, manufactures, possesses, sells, purchases, transports, imports inter-State, export inter-State or cannabies, shall be punishable with R.I. for a term which may extend to six months, or with fine which may extend to Rs. 10,000/- or both, if it involves small quantity and if it involves commercial quantity, the sentence is R.I. for a term which shall not be less than 10 years and with fine which shall not be less than Rs. 1,00,000/- (Rs.One Lac). As per section 29(1) whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under Chapter IV of the Act, shall, whether such offence be or be not committed in consequence of such abatement or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with punishment provided for the offence. 9. At the outset Mr.Pradhan submitted that accused no.1 was in illegal detention inasmuch as after he was taken in custody on 3.6.1999 he was not produced for remand before the competent court either at Mumbai or Jaipur for almost two weeks and this illegal 11 detention itself vitiated the prosecution case. Though such an issue was not raised before the trial Court as it goes to the very root of the prosecution case, we examined the record and more so when Ms.Dere, Special Standing Counsel insisted that accused no.1 was granted remand and he was not at any point of time under illegal detention. The record in NDPS R.A.No.102 of 1999 in NDPS Case No.279 of 1999 was called from the Special Court and perused by us. Accused no.1 was arrested on 2.6.1999 and was produced before the court on 3.6.1999. The court was pleased to grant his police custody till 15.6.1999 with permission to take him to New Delhi and Jaipur. On being produced before the court on 15.6.1999, the judicial custody of accused no.1 was granted upto 24.6.1999 and it was extended upto 6.7.1999. It was further extended from time to time till the charge-sheet was filed. Thus, there is no substance in the contentions that accused no.1 was in illegal detention and, therefore, the trial was vitiated. 10. As per section 120-A of IPC, when two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal, by illegal means, such an agreement is designated a criminal conspiracy; provided that no agreement except agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The explanation below section 120 of the IPC states that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that 12 object. 11. By relying upon this definition of criminal conspiracy Mr.Pradhan urged that the conviction under section 29(1) is illegal and more so when accused nos.2 and 3 have been acquitted. Though in Criminal Appeal No.352 of 2001, the acquittal order passed against accused nos.2 and 3 is under challenge, having regard to the evidence that was adduced by the prosecution and considered by the trial Court we have no doubt in our mind that there is no case made out by the prosecution against accused nos.2 and 3 and by now accused no.3 is dead. In the case of Topandas Vs. State of Bombay A.I.R. 1956 SC 33, Section 120-A of IPC had fallen for consideration before the Supreme Court and it held that by the terms of definition itself, there ought to be two or more persons, who must be parties to such an agreement and it is tried to say that one person alone can never be held guilty of criminal conspiracy and that one cannot conspire with oneself. Therefore, if four named individuals were charged with the offence under section 120-B of IPC and if three out of these four accused were acquitted of the charge, the remaining sole accused, who is accused no.1, before us will never be guilty of criminal conspiracy. In the case of Vinayak Vs. State of Maharashtra (1984) 4 SCC 441 the Supreme Court held that a single person cannot be convicted for the offence under section 120- A and out of several accused charged under section 302, 120-B conviction of only one and acquittal of others cannot be sustained and remaining accused shall be ordered to be acquitted. On the backdrop 13 of this well settled legal position we have no doubt in our mind that the offence under section 29(1) of NDPS Act against accused no.1 is not established. 12. Let us, therefore, proceed to examine the prosecution case for the offence punishable under section 20(b) read with 8(c) of the NDPS Act. P.W.7 – Kalyansingh Kothari was resident of 2/633, Jawahar Nagar and was residing at the same addess since 1984. It was three storeyed building and housing board colony and he was occupying the building on the ground floor and it consisted of two bed-rooms alongwith a garage admeasuring about 10 X 10 ft. He admitted before the trial Court that accused no.1 is the son of his Uncle in distant relation and he knew accused no.1 from his childhood. He stated that accused no.1 was involved in activities of smuggling before 8-10 years. As per him accused no.1 was residing at Dalel Niwas, Near Mahamandir, Jodhpur. He used to stock old household material and grains in the garage with lock and key. In May 1998, he had received telephone call from accused no.1 and represented that accused no.1 wanted to export some material and, therefore, he needed to accomodate the said material in his garage for 3-4 days. Accordingly, the witness had informed his wife that accused no.1 would be bringing some material and accused no.1 should be allowed to stock the same in the garage. Three to four days later, the material was brought and stored in the garage when P.W.12 – Hansa Kothari had given keys of the garage but in the absence of P.W.7. With an extra key available with him, P.W.7 opened 14 the garage and had seen brown coloured boxes lying inside the garage with endorsement “leather jackets”. As per him the number of boxes may be between 15 to 25 and they were packed from outside. The said boxes remained in garage for 20-25 days and were removed by accused no.1, whom he identified in the court as well. After vacating the garage, the key was handed over to P.W.12 by accused no.1. During the period when the boxes were stored in the garage, he met accused no.1 at Hotel Kalyan, Jaipur and in response to the telephone call given by accused no.1. Accused no.1 was occupying the room in the said hotel. He further stated that he had asked accused no.1 to remove boxes as it was causing inconvenience to him and accused no.1 had stated that the boxes would be transported at the earliest. When he met accused no.1 in the hotel, there were 2-3 other persons sitting in the hotel but unknown to the witness. He also stated that none of those 2-3 persons were before the court. He also admitted that his car was used by accused no.1. His testimony in examination in chief has not been impeached on any count. He further stated that accused no.1 could not help him in recovering the debts. P.W.12 – Hansa Kothari is the wife of P.W.7 and her evidence before the trial Court has corroborated the evidence of P.W.7 regarding storage of cartons in the garage of P.W.7. She also stated that the accused would use Tata mobile car for transportation of these cartons. As per her there were about 15-20 cartons kept in the garage and she was not knowing the contents of the said boxes. 15 The cartons were finally removed in Tata mobile car of white colour by accused no.1. She also stated that her family had cordial relations with accused no.1. In the cross examination she also stated that she was unable to give exact number of boxes kept in the garage. Thus, the evidence of P.W.7 and P.W.12 proved that 15-25 cartons were stored by accused no.1 in the garage of P.W.7 for about 20-25 days and they were transported from the said garage by Tata Mobile car containing unknown material. 13. P.W.13 – Shri Shantilal Jain was employed with M/s. Rajasthan Highway Services situated at Agra Road, Jaipur as the Manager of Petrol Pump owned by Shri Ashok Singh, Shri Rampratap Singh and Shri Gajrajsing. He knew Rajkumar Ajmera (P.W.11) and also his firm ICC as he used to often visit his office. On 11.6.1998 while he was sitting at his office accused no.1 met him as the friend of Thakur Rampratapsing and accused no.1 represented that he wanted to urgently send some goods to Mumbai. Accused no.1 requested P.W.13 to help him for transporting the goods through ICC. The witness, therefore, spoke to Durga Prasad – P.W.5, Manager of ICC. He had taken accused no.1 to the office of ICC and there was no other person with accused no.1 at that time. He introduced accused no.1 to Durga Prasad as a person of acquintance of accused no.2. He also informed Durga Prasad that some goods of accused no.1 were urgently required to be transported to Mumbai. After negotiations between accused no.1 and Durga Prasad were completed he came out of the office of ICC and at that time he noticed the owner of ICC, 16 Rajkumar Ajmera – P.W.11 entering through the main gate. P.W.11 asked the purpose of his visit and, therefore, he disclosed the same. In his cross examination he stated that he did not know particulars/rules of transportation when he had accompanied accused no.1 to the office of ICC at the first instance. In his cross examination he admitted that on 15.6.1998 when he was called at CBI Office he had learnt that seizure of the goods which were transported by accused no.1 was under investigation. He also denied the suggestion that accused nos.1 and 3 had visited him at his office together and that accused no.3 had accompanied accused no.1 from the Petrol Pump to the office of ICC. He also admitted in the cross examination that he saw accused no.1 for the first time in the court after 11.6.1998. He also admitted that he was called upon to identify the photograph in the court of Chief Judicial Magistrate and he identified the photograph of accused no.1. 14. P.W.5 – Durga Prasad was working with ICC as the Manager since 1994. He stated before the trial Court that on 11.6.1998 while he was with ICC he had received a telephone call from P.W.13 Shantilal Jain and informed that a person of his acquintance i.e. accused no.1 wanted to send goods urgently to Mumbai and then within about ten minutes P.W.13 alongwith accused no.1 visited the office of ICC and informed P.W.5 that accused no.1 wanted to despatch