-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 105 OF 2007 CRIMINAL APPEAL NO. 105 OF 2007 CRIMINAL APPEAL NO. 105 OF 2007 Salim Ibrahim Khan @ Salim Chaddi, ¦ .. Appellant. Muslim, Aged about 50 yrs. ¦ (Org.Accd.No.1) permanently residing at Room No.2-G, ¦ 2nd floor, Mahalaxmi Railway Chawl ¦ No.40,Shahir Amar Shaikh Rd.,Mumbai-11¦. Presently undergoing sentence at ¦ Kolhapur Central Prison, Kalamba, ¦ Kolhapur. ¦ V/s. ¦ 1. Union of India ¦ Aaykar Bhavan, New Marine Lines ¦ Mumbai 400 020. ¦ ¦ 2. The State of Maharashtra ¦ .. Respondents. --- WITH WITH WITH CRIMINAL APPEAL NO. 210 OF 2007 CRIMINAL APPEAL NO. 210 OF 2007 CRIMINAL APPEAL NO. 210 OF 2007 Ramlal Fakirchand Lohar .. Appellant Hindu, Aged about 32 years, (Org.Accd.No.2) permanently residing at village Mokhampura, Tahsil-Pratapgarh Dist.Chitodgarh, Rajasthan. Presently undergoing sentence at Kolhapur Central Prison, Kalamba,Kolhapur. V/s 1. Union of India Aaykar Bhavan, New Marine Lines, Mumbai - 400 020 2. The State of Maharashtra .. Respondents. ---- Mr.Anil Lalla for the Appellants. Mr.D.N.Salvi for the Respondent No.1-Union of India. Mr. Y.M.Nakhwa, APP for the State. -: 2 :- --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 27th FEBRUARY, 2009. DATED : 27th FEBRUARY, 2009. DATED : 27th FEBRUARY, 2009. (Judgment reserved on 17.01.2009) ( -"- pronounced on 27.02.2009) JUDGMENT : JUDGMENT : JUDGMENT : 1. Both these criminal Appeals arise out of the judgment and order dated 28th/29th November, 2006 passed by the learned Special Judge for NDPS Cases, Greater Mumbai in NDPS Special Case No. 62/2005. By the said judgement and order, the appellants in both the appeals have been convicted for the offence punishable under section 21(c), read with section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short, hereinafter called as "the NDPS Act") and sentenced to suffer R.I. for 10 years each and to pay a fine of Rs. one lakh each, in default each to suffer S.I. for six months. They have also been convicted for the offence punishable under section 29 read with section 8(c) and 21(c) of the NDPS Act and sentenced to suffer R.I. for ten years each and to pay a fine of Rs.one lakh each, in default to suffer S.I. for six months each. The both the substantive sentences are ordered to run concurrently. 2. The prosecution case in brief is that Mr. Nair, Intelligence Officer, received information at about 5 p.m. on 9th December, 2004 that one person by name Ramlal Lohar -: 3 :- from Rajasthan had delivered 2kgs of heroin in the evening to Salim Khan @ Salim Chaddi, who is staying at Room no.2G, 2nd Floor, Mahalaxmi Railway Chawl no.40, Shahir Amar Shaikh Road, Mumbai -11 . Mr. Nair, reduced this information in writing and got signed by the informant. The original information was kept sealed envelope. The verbatim of information alongwith the sealed envelope was placed before the Superintendent Patil and Zonal Director Smt.Alka Tyagi. The Zonal Director singed the verbatim of information and kept sealed envelope in her custody. The team of officers consisting of Mr. Patil, Henry, Sanjay Pujari, DI. Kedare, Anil Kodnani, PS Namboodri and Nair was formed under the direction of Superintendent Patil and Mr. Henry was ordered to lead the team. Henry collected drug testing kit, contraband cartoons, envelopes, scotchtape, weighing machine etc.. All the members of the team reached to the spot at about 6.45 p.m. Mr. Henry arranged two panchas who were narrated of the information. Both the panchas agreed to witness the search and seizure. All of them thereafter, went to the Room No.2G, second floor, Mahalaxmi Railway Chawl, Mumbai. They found the door of the room was closed. Mr. Henry knocked the door and the same was opened by Salim Khan (the appellant accused no.1 in the Cri.Appeal No. 105/2007). The raiding party members and the panchas were introduced to the accused and the accused was informed about the -: 4 :- information and intended search. The personal search of the raiding party members and the panchas was offered, but the accused declined. Upon entering the room, the accused no.2 Ramlal Lohar (the appellant accused in Criminal Appeal No. 210/2007) was found sitting on cot. The search of the premises was taken and during the search yellow colour plastic bag was found. The said bag was opened and two cleared polythene packets containing brown colour powder was found. On enquiry, both the accused disclosed that the said powder is heroin. A little quantity of that powder was tested with the help of field testing kit and it found the presence of heroin. The plastic bags were emptied in another polythene packet, weighed and found to be 2 kgs heroin. The samples of 5 grams each were drawn from the composite mixture and the same was kept in two plastic sachets and heat sealed. The plastic sachets were kept in two separate envelopes and marked as S-I and S-II Both the envelopes were closed and sealed with NCB seal No.03. The panchas, accused and Mr. Henry signed on the envelope. The plastic bag containing bulk quantity was heat sealed, placed in a cardboard cartoon and closed. The label marked ‘H’ mentioning the description of contains was pasted on the cardboard carton and it was tied with a jute string and sealed with NCB seal no. 3. The yellow colour empty polythene bag and two polythene packets were put together in another -: 5 :- cardboard carton and sealed. The label marked ‘P’, mentioning the contains of the cardboard cartoon was pasted and it was signed by the panchas, accused persons and Mr. Henry. Thereafter, the search of the premises was taken and photo copy of licence issued to accused no.1 by Patiwala Hamal Sangh and two money orders receipts of Rs. 1,000/- each were found and the same were seized. 3. The accused were individually informed of their right of search in the presence of Gazetted Officer or Magistrate and then the searches of the accused were taken. The accused No.1. Salim Khan was found in possession of Samson make mobile phone and the accused no.2 Ramlal Lohar was found in possession of Nokia make mobile phone and cash amount of Rs. 450/- The said amount was returned to him. Detail panchanama was drawn on the spot. After completion of the panchanama, the officers alongwith the accused and seized articles came back to NCB office. On the next day, Mr. Henry prepared search and seizure report and placed it before Superintendent Patil alongwith the seized articles. The seized articles were deposited in godown and entry to that effect was taken in the register. The statement of accused no.1 was recorded, wherein he admitted that Ramlal Lohar had brought 2 kgs. of heroin and during the course of their discussions, NCB officers searched the premises and seized 2 kgs. of -: 6 :- heroin. The accused no.2 Ramlal Lohar in his statement also submitted that on 09.12.2004 he delivered 2 kgs. of heroin to the accused no.1 Salim Khan. 4. On 10.12.2004, the sample packet S-I was forwarded to Dy. C.C.. The second sample packet S-II was carried to F.S.L. by Panigrahi. The samples were analysed and found to contain Diacetyl Morphine (heroin). The statements of witnesses were recorded and after completion of usual investigation, the complaint was filed against both the accused. 5. The learned special Judge framed charge vide Exh. 2 against both the accused for the offences punishable under sections 21 (c) read with sections 8(c) and 29, read with section 8(c) and 21 (c) of the N.D.P.S. Act. The details of the charge were read over and explained to the accused to which they pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. 6. In order to establish the guilt against the accused for the offences levelled against them, the prosecution examined as many as 10 witnesses, namely, PW-1 Mohammed S.A. Khan, who is the complainant; PW-2 Vipin N. Nair, who is an Intelligence Officer, who received -: 7 :- information, PW-3 Chandrashekhar I. Kedare; PW-4 Henry V. Meachery; PW-6 Anil B. Kodnani, who are the officers and intelligence officers PW-8 Ajit P. Patil, who is the Superintendent of NCB and PW-5 Narayan Jogi Panigrahi, is the head constable who carried the samples of packets to the F.S.L. Kalina. PW-7 Vinodkumar B. Jayant, who is the Assistant Chemical Examiner, PW-9 Mohammed Saeed Abdul Majid Shaikh, who was called in NCB office. PW-10 Ramesh Shankar Padwal, Railway servant, who was allotted quarter bearing room no. 2G, 2nd floor, Railway Chawl No. 40, at Mahalaxmi. 7. The learned Special Judge after going through the evidence on record and hearing the learned counsel for both the sides held that the charge against the accused for the offence for which they were prosecuted is proved and accordingly convicted both the appellants accused, as stated above. 8. Mr. Lalla learned counsel for the appellants accused challenged the conviction of the appellants on number of grounds. Mr. Lala submitted that the conviction of the appellants by the learned Special Judge is unsustainable for non-compliance of the provisions of sections 41 and 42 (2) of the NDPS Act. In order to substantiate his contention, he argued that the original -: 8 :- copy of the information at Exh. 19 was not submitted to the superior officials in compliance of section 42 of the NDPS Act. Mr.Lala further submitted that the original information which was reduced in writing and placed in a sealed envelope, and deposited with Zonal Director of NCB, was not tendered in the trial court by the prosecution. He also submitted that Exh. 19 does not bear outward number and file number etc. The trial court therefore, did not have advantage of comparing the original information with Exh. 19. Mr. Lala further submitted that admittedly, the raid in the present case was carried between sunset and sunrise and in view of the proviso to section 42, the raiding party should have recorded reasons for and thus in view of the provisions of section 41 and 42, the entire search and seizure is vitiated for non-compliance of the proviso to section 42 of the NDPS Act. In this regard Mr. Lala further relied upon the judgments in the case of - (i) Abdul Rashid Mansuri vs. State of Gujarat, reported in 2000 Cri. L.J. 1384 2000 Cri. L.J. 1384 2000 Cri. L.J. 1384; (ii) State of Punjab vs. Balbir Singh reported in 1994 Cri. 1994 Cri. 1994 Cri. L.J. 3702 L.J. 3702 L.J. 3702 and (iii) State of West Bengal vs. Babu Chakraborty, reported in 2004 Cr.L.J. 4858. 2004 Cr.L.J. 4858. 2004 Cr.L.J. 4858. 9. Mr.Lalla further submitted that the seizure of the contraband was effected from the enclosed room which was raided on 09.12.2004 at about 5.pm., being the room -: 9 :- No.2G, 2nd Floor, Mahalaxmi Railway Chawl No. 40. Since recovery is found in an enclosed place it was obligatory for the prosecution to adduce oral and documentary evidence on record to establish nexus of both the appellants with the premises. He further submitted that mere presence of the appellants in the said room at the relevant time will not be sufficient to infer their complicity in the offence alleged against them. In this regard, he relied upon the judgments in the case of - (i) Antony Pilley vs. State of Maharashtra reported in 1993 in 1993 in 1993 Cri. L.J. 1502, (ii) Cri. L.J. 1502, (ii) Cri. L.J. 1502, (ii) Alakh Ram vs. State of Uttar Pradesh, reported in 2004 Cri.L.J. 905 2004 Cri.L.J. 905 2004 Cri.L.J. 905 and (iii) Ismaikhan Ayubkhan Pathan, reported in 2000 S.C.C. (Cri.) 2000 S.C.C. (Cri.) 2000 S.C.C. (Cri.) 1241. 1241. 1241. 10. Mr. Lalla submitted that the only panch witness i.e. PW-9 Mohammed Shaikh, examined by the prosecution has not supported the prosecution case. It is also brought on record that this panch is a habitual panch. Mr. Lalla submitted that another panch was not examined by the prosecution. According to him it is the duty of the prosecution to lead cogent, credible and reliable evidence to corroborate testimony of the raiding officers who are interested in the prosecution. The panch witness in this regard play a vital role in cases under the NDPS Act and therefore, in the absence of any corroboration -: 10 :- from the evidence of an independent witnesses, the conviction of the appellants accused cannot be based on the testimony of the officers only. In this regard he relied upon the judgments in the case of - (i) Milan Sarcanski vs. State, reported in 1997 Cri. L.J. 2028 1997 Cri. L.J. 2028 1997 Cri. L.J. 2028 (Bombay High Court); (ii) Usman Haidarkhan Shaikh vs. The State of Maharashtra, reported in 1991 Cri. L.J. 1991 Cri. L.J. 1991 Cri. L.J. 232; 232; 232; (iii) Deepak Sharma vs. State of Goa, reported in 2007 Cri. Crime, 294; 2007 Cri. Crime, 294; 2007 Cri. Crime, 294; (iv) Aspaq Ahmed vs. State of Goa reported in 2006 All MR Cri. 2089; 2006 All MR Cri. 2089; 2006 All MR Cri. 2089; (v) Shiv Kumar Ashok Mishra vs. State reported in 1996 Cri.L.J. 1454 1996 Cri.L.J. 1454 1996 Cri.L.J. 1454 (Bombay High Court); and (vi) Mohd. Hussain Babamiyan Ramzan vs. State of Maharashtra reported in 1994 Cri. L.J. 1020. 1994 Cri. L.J. 1020. 1994 Cri. L.J. 1020. 11. Mr. Lalla also submitted that the it is the duty of the prosecution to conclusively establish that the contraband allegedly seized from the appellants is the same which is tendered in the court during the trial. It further submitted that it is common knowledge that the seized muddemal including the samples changes hands from time to time and therefore, each and every person in this link is to be examined and the documentary evidence is to be tendered to prove this chain of events. He submitted that the sample S-I was sent to DYCC and sample S-II was sent to F.S.L. Kalina. PW-7 Vinod Kumar has submitted report in respect of sample S-I. However, the person who -: 11 :- carried this sample to DYCC office has not been examined. He also submitted that the person who collected the C.A. report and the remnant sample and returned to NCB office has also not been examined. Regarding Sample S-II, he submitted that PW-5 Naryan Panigrahi carried the sample to F.S.L. Kalina on 10.12.2004. However, on the same day the sample could not be delivered to F.S.L. at Kalina as the same was closed and only on 14.12.2004 the sample was delivered by PW-5. However, there is no documentary evidence of safe custody of this packet in the N.C.B. record. He also submitted that the person who conducted the test at F.S.L. Kalina on sample S-II has not been examined during the trial though it was mandatory. In this regard he relied upon the judgment reported in (i) 1994 Cri.L.J. 1020 1994 Cri.L.J. 1020 1994 Cri.L.J. 1020 (supra) and (ii) 1998 (2) Mh.LJ 884 - 1998 (2) Mh.LJ 884 - 1998 (2) Mh.LJ 884 - Nicklaus Peter Heel vs. State of Goa. Nicklaus Peter Heel vs. State of Goa. Nicklaus Peter Heel vs. State of Goa. 12. Mr.Lalla also submitted that the charge framed against the appellant accused by the trial court is defective. Under section 212 of the Cr.P.C.. the charge should be clear and specific. If the charge is vague and of a general nature and if the same results in prejudice to the accused, the trial would stand vitiated. The learned Judge has not referred specific date of seizure and place of recovery in the charge. He further submitted that the appellants accused have been charged for -: 12 :- importing contraband, which allegedly brought by the Ramlal Lohar from Rajasthan to Mumbai. The learned trial Judge ought to have been more specific and included the words "import interstate" in the charge. The charge is defective and non-concluding. The above defects in the charge resulted in serious miscarriage of justice and prejudice to the appellants. 13. Lastly Mr. Lalla submitted that the statements of the appellant accused under section 67 of the NDPS Act are not voluntary and therefore, the prosecution could not have pressed for conviction of the appellant accused. In addition to this, the alleged confessional statements of both the appellants accused have already been retracted. He also submitted that the confessional statements of both the accused are not sufficient and in the absence of independent corroboration to these retracted statements. 14. Per contra, Mr. Salvi, learned prosecutor for the respondent no.1 supported the impugned judgment and order of the trial court. He submitted that the search and seizure was in compliance with the provisions of section 41 and 42 of the NDPS Act and therefore, it cannot be said that the trial is vitiated. In this regard he referred to the mandatory nature of the provisions of said sections and further relied on the judgment of the -: 13 :- Division Bench of this court in the case of Alice Norman Alice Norman Alice Norman vs. Narcotic Control Bureau, Bombay & Anr., vs. Narcotic Control Bureau, Bombay & Anr., vs. Narcotic Control Bureau, Bombay & Anr., reported in 1997 (V) LJ 1. 1997 (V) LJ 1. 1997 (V) LJ 1. 15. Mr. Salvi submitted that though PW-9, the Panch witness turned hostile there is evidence of PW-1 Mohammed S.A.Khan, PW-2 Vipin N. Nair, PW-3 Chandrashekhar I. Kedare, PW-4 Henry V. Meachery, PW-6 Anil B. Kodnani, PW-8 Ajit P.Patil, who is Superintendent in NCB department. He submitted that the evidence of these witnesses being genuine, mere fact that the PW-9 Panch witness turned hostile, will not affect the prosecution case. In this regard, he relied upon the judgments in the case of - (i) P.P. Fathima vs. State of Kerala, reported in J.T. 2003 (8) SC 527 J.T. 2003 (8) SC 527 J.T. 2003 (8) SC 527 (ii) Vinod S. Lohiya vs. State of Maharashtra, reported in 1996 (1) Bom C.R.483 1996 (1) Bom C.R.483 1996 (1) Bom C.R.483 and (iii) Tahir vs State (Delhi), State (Delhi), State (Delhi), reported in 1996 (3) SCC 338. 1996 (3) SCC 338. 1996 (3) SCC 338. 16. Regarding appellant’s nexus with the premises in question, Mr. Salvi submitted that the same is sufficiently proved inasmuch as from the said premises identity card of Salim Khan and two money order receipts are recovered. This recovery along with the statement of PW-10 Ramesh Shankar Padwal will be sufficient to prove nexus of the appellants-accused with the premises. -: 14 :- 17. Mr. Salvi submitted that there are two report of chemical analyser on the record. PW-7 Vinodkumar B Jayant is examined to prove sample S-1. There is another report by F.S.L. Kalina in respect of packet S-II. He submitted that in order to prove chemical analyser’s report in respect of packet S-II, there is no need to examine chemical analyser. In this regard he relied upon the judgments in the case of - (i) Dasu and others vs. State of Maharashtra, reported in 1985 Cr.L.J. 1933 1985 Cr.L.J. 1933 1985 Cr.L.J. 1933 and (ii) State of A.P. vs. Gangula Satya Murthy 1997 (1) SCC 272. 1997 (1) SCC 272. 1997 (1) SCC 272. 18. Regarding allegation of defective charge, Mr. Salvi relied upon the provisions of section 464 of the Cr.P.C. and submitted that the appellants accused understood the charge and therefore, there is no prejudice to the appellants. 19. Regarding statements of Appellants under section 67 of the NDPS Act, he submitted that the same being voluntary can be safely relied upon inspite of the fact that at later stage same were retracted. 20. I will consider the submissions of both the learned counsel in the light of the evidence on the record and the ratio of the various judgments of the Apex Court as well as this court. Regarding first submission of Mr. -: 15 :- Lala that the provisions of sections 41 and 42 of the NDPS Act are mandatory in nature, there is no dispute. The Apex court in 1994 Cri.L.J. 3702 (supra) ; 2000 Cri. 1994 Cri.L.J. 3702 (supra) ; 2000 Cri. 1994 Cri.L.J. 3702 (supra) ; 2000 Cri. L.J. 1384 (supra) L.J. 1384 (supra) L.J. 1384 (supra) and 2004 Cri.L.J. 4858 2004 Cri.L.J. 4858 2004 Cri.L.J. 4858 (supra) held that the procedure laid down under sections 41 and 42 is mandatory. Subsection 1 of section 42 lays down that the empowered officer, if has prior information given by any person, he should necessarily take it down in writing and where he has reason to belive from his personal knowledge or information that the offences under Chapter IV have been committed or any materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out arrest or search without a warrant between sunrise and sunset and he may do so without recording his reasons for the belief. The proviso to subsection 1 lays down that if the empowered officer has reason to belive, a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset an sunrise after recording the grounds of his belief. Under Sub-section 2 of section 42 the empowered officer, who takes down any information in writing or records grounds for his belief under the proviso to subsection 1, shall forthwith send a copy of the same to his immediate -: 16 :- official superior. 21. PW-2 Vipin N.Nair testified that on the date of incident at about 5 p.m. on 9.12.2004, he received information that one person by name Ramlal Lohar from Rajasthan delivered 2 kgs of heroin to Salim Khan, who was staying in Room No.2G, Mahalaxmi Railway Chawl No.4, Shahir Amar Shaikh Road, Mumbai. This information was reduced in writing and signed by him and the informant and it was kept in sealed envelope. The verbatim of information alongwith the sealed envelope was placed before the Superintendent and Zonal Director. The Zonal Director signed information and retained the sealed envelope with him. PW-8 Superintendent Patil also deposed that Mr. Nair placed before him the verbatim of information and sealed envelope containing the original information and the sealed envelope was handed over to the Zonal Director. The verbatim of information was produced in the court which is exhibited at Exh. 19. Thus, in my view, the PW-4 Nair and PW-8 Ajit Patil have established beyond doubt that the mandate under the provision of subsection 2 of section 42 is complied with. 22. It is the submission of Mr. Lala the failure of the prosecution to produce original information in the court has vitiated the trial. As against this, Mr. Salvi -: 17 :- relied upon judgement of the Division Bench of this court reported in 1997 (5) LJI -1 (supra) and the judgment of the Apex Court in the case of M. Prabhulal vs. Asst. Director DIR, reported in 2003 (IV) CCR 221 (SC) 2003 (IV) CCR 221 (SC) 2003 (IV) CCR 221 (SC) . The Division Bench, referring to provisions of section 68 of the NDPS Act observed that full protection is granted to the informant and therefore, it is not possible to accept that the information which may contain the name of the informant would be produced at the trial. It was further observed that in case of leakage of the name of the informant, there is every possibility of danger to the life or limb of the informant. Thus there is