GIRISH RAGHUNATH MEHTA versus INSPECTOR OF CUSTOMS AND ANOTHER
[2016] 5 S.C.R. 204, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Ratio
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[2016] 5 S.C.R. 204 
GIRISH RAGHUNATH MEHTA 
v. 
INSPECTOR OF CUSTOMS AND ANOTHER 
(Criminal Appeal Nos. I 020-1021 of2009) 
SEPTEMBER 07 , 2016 
[C. NAGAPPAN AND ADARSH KUMAR GOEL, JJ.) 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
s. 15 rlw. s. 8(c), s. 67 - Unauthorized sale of contraband -
Opium poppy straw allegedly sold by appellant-accused without 
any bills and authorization - Co-accused was apprehended with 
30 Kg. of poppy straw on raid by PWJ- Inspector of Customs and 
PW5 - Co-accused stated poppy straw was purchased by him from 
appellant without any bill - Positive test for presence of opium by 
field testing kit in sample collected - Appellant gave statement u/ 
s.67 that he had sold 30 Kg. of poppy straw powder to co-accused 
without receipt and medical prescription - Conviction of appellant 
- Propriety - Held: No serious inflr111ity in the findings recorded by 
the courts below in convicting and sentencing the appellant -
Prosecution version based not only on the state111ent u/s.67 but 
also on evidence of recovery of the contraband immediately after 
sale and circumstances showing that the contraband was sold by 
the appellant to the co-accused, without any authorization -
Maharashtra Narcotic Drugs and P!>ychotropic Substances Rules, 
1985. 
ss. 42 and 43 - Applicability of - Discussed - s.42 applies 
when the contraband recovered from a building, conveyance or 
enclosed place and whereas s.43 applies where recovery is
from a 
public place. 
Dismissing the appeals, the Court 
HELD: 1. Both the courts below had concurrently held that 
the appellant was found to have sold the contraband to the co-
accused without any licence. The said finding, inter (l/i(I, was based 
on the evidence of PWl, Inspector of Customs who seized the 
contraband from the co-accused. The evidence in the form of 
statement of the appellant himself (Ex.-20) u/s. 67 of the Narcotic 
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GIRISH RAGHUNATH MEHTA v. INSPECTOR OF CUSTOMS 
AND ANOTHER 
Drugs and Psychotropic Substances Act, 1985 before his arrest 
clearly shows that the appellant had sold the contraband to the 
co-accused who did not have any licence to put·chase thereof. 
The connection of contraband with the appellant was clearly 
established after which the burden was on appellant to show that 
he had effected sale to an authorized person. Recovery from the 
co-accused was from an open place to which Section 42 of the Act 
was not attracted. At the time of production of gunny bag no 
objection was raised on behalf of the appellant that the bag did 
not carry any label or sign of identity. The absence of label and 
sign of identity could not be presumed. The samples were duly 
tested by the chemical analyzer and were found to be intact. There 
was no serious infirmity in the findings recorded by the courts 
below in convicting and sentencing the appellant. [Para 9][210-
A-D) 
State of Rajasthan v. Jag Raj Singh (2016) 6 SCALE 
32; Tofan Singh 1( S1a1e of Tamil Nadu (2013) 16 SCC 
31 : 2013 (9) SCR 962; Union of India v. Bal Mukund 
(2009) 12 SCC 161 : 2009 (5) SCR 205; Raju Premji 
v. Customs NER Shillong Unit (2009) 16 SCC 496 : 
2009 (7) SCR 839; Noor Aga v. State of Punjab (2008) 
16 SCC 417 : 2008 (10) SCR 379 - referred to. 
2.1 There can be no doubt that the Court had to satisfy 
itself that the statement u/s.67 was made voluntarily and at a time 
when the person making such statement had
not been made an 
accused. Whether the statement was voluntary and free from 
encumbrance had to be judged from the facts and circumstances 
of each case. [Para 11)(211-A-B] 
2.2 
However, in the present case, it is not necessary to go 
into this aspect as there was adequate evidence to prove the 
sale of the contraband by the appellant for which co-accused had 
been convicted and sentenced. The prosecution version was 
based not only on the statement u/s. 67 but also on the evidence 
of recovery of the contraband immediately after sale and the 
circumstances showing that the contraband was sold by the 
appellant to the co-accused, without any authorization. [Para 
11)(211-C-D) 
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SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
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Abdul Rashid Ibrahim Mansuri v. State of Gujarat 
(2000) 2 SCC 513: 2000 (1) SCR 542; Sukhdev_Singh 
v. State of Haryana (2013) 2 SCC 212: 2012 (11) SCR 
964; SajanAbraham " State of Kera/a (2001) 6 SCC 
692 : 2001 (l) Suppl. SCR 335 - referred to. 
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Case Law Reference 
2000 (1) SCR 542 
referred to 
Paras 7, 10 
(2016) 6 SCALE 32 
referred to 
Para 7 
2012 (11) SCR 964 
referred to 
Para 7 
2013 (9) SCR 962 
referred 'to 
Para 7 
2009 (5) SCR 205 
referred to 
Para7 
2009 (7) SCR 839 
referred to 
Para7 
2008 (10) SCR 379 
referred to 
Para 10 
2001 (1) Suppl. SCR 335 
referred to 
Para 10 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
Nos. I 020-1021 of2009. 
From the Judgment and Order dated 12.09.2007 in Criminal Appeal 
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No. 732 of2006 with Criminal Application No. 1355 of 2006 passed by 
the High Court of Judicature at Bombay. 
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Anand Grover, Sr. Adv., Purushottam Sharma Tripathi, Mukesh 
Kumar Singh, Luv Kumar, Ms. Tripti Tandon, Advs. for the Appellant. 
Yashank Adhyaru, Sr. Adv., Ms. Sushma Manchanda, Shankar 
Divate, B. K. Prasad, Mahaling Pandarge, Addi. Govt. Adv., Nishant 
Ramakantrao Katneshwarkar, Advs. forRespondent. 
The Judgment of the Court was delivered by 
ADARSH Kl.JMAR GOEL, J. I. These appeals have been 
preferred by the appellant against his conviction under Section 15 read 
with Section 8(c) of the Narcotic Drugs and Psychotropic Substances 
Act, 1985 (for short "the Act") and
sentence•to undergo rigorous 
imprisonment for four years and to pay fine of Rs.20,000/-, to further 
undergo rigorous imprisonment for six months, in default of payment of 
fine, for illegal sale of30 Kgs. of poppy straw to the co-accused-A-2,
GIRISH RAGHUNATH MEHTA v. INSPECTOR OF CUSTOMS 
AND ANOTHER [ADARSH KUMAR-GOEL, J.] 
who did not have valid licence as per the Maharashtra NDPS Rules, 
1985. 
2. Case of the prosecution is that the Inspector of Customs, NCCP 
Customs, Mumbai received intelligence information on 26'h February, 
2004 that the appellant was selling crushed opium poppy straw without 
any bills on cash basis from his premises at 6, Pravin Chambers, Keshvji 
Naik Road, Mumbai. Co-accused- Karim Patel was to purchase 30 
kgs. of poppy straw. A raid was organized and -Karim Patel was 
apprehended with 30 Kgs. of poppy straw. The raid was conducted by 
PW 1- Bhaskar Shetty, Inspector of Customs, along with others including 
PW5- Canute Menezes. The said accused stated that he had purchased 
the poppy straw without any bill on cash payment of Rs.5400/-. On 
·search of the premises belonging to the appellant, some documents were 
recovered. Appellant was found in the shop and stated that he was 
proprietor and a lady present there was the manager of the firrp. 
Co-
accused- Karim Patel, who was also brought by the raiding party with it, 
opened the bag which had colored powder in a polythene bag. A small 
quantity was tested on the Field Testing Kit and result was positive for 
the presence of opium. The powder was weighed and found to be 30 
Kgs. Three samples of 24 grams each were collected and sealed. 
Remaining powder was sealed and kept in the same bag. The .label with 
signatures of panchas and
the investigating officer PW I- Bhaskar Shetty 
was affixed on the bag. Co-accused- Karim Patel identified the appellant 
as the person who had sold the powder to him without bill on cash 
payment. It, is not relevant to mention about the rest of stock of opium 
kept in the shop and thereafter recovery of cash amount from the house 
of the appellant as conviction of the appellant has been upheld only for 
the charge mentioned earlier. Co-accused- Karim Patel also stated that 
he had purchased poppy straw powder on several. occasipns from the 
appellant and sold the same. 
3. Statement of the appellant was recorded under Section 67 of 
the Act on 271h February, 2004 to the effect that he had sold 30 Kgs. 
powder to A-2 without receipt and without medical prescription. A-2 
~.did not have valid permit. After completion of investigation, both the 
accused were sent up for trial. 
4. The prosecution_ examined 11 witnesses which included 
investigating officer who effected recovery of the contraband, 
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SUPREME COURT REPORTS 
(2016) 5 S.C.R. 
Superintendent of Customs who received information, Assistant Chemical 
Examiner, the landlord of the premises in possession of the appellant as 
a licensee/ tenant and the PSI of the State Excise. 
5. The trial court convicted and sentenced the appellant not only 
for the offence mentioned above but also for illegal possession of 
commercial quantity of poppy straw powder. 
6. On appeal, the High Court partly allowed the appeal, quashed 
and set aside the conviction and sentence for illegal possession of 
commercial quantity of poppy straw powder but upheld the conviction 
and sentence for illegal sale transaction of30 kgs. of poppy straw powder. 
The High Court also upheld the conviction of co-accused for abetment 
of the said offence by purchasing 30 kgs. of poppy straw powder from 
the appellant without any valid licence and permit The co-accused has 
not preferred any appeal as stated by the learned· counsel. The appellant 
has undergone the sentence during pend ency of the proceedings. 
7. Learned counsel for the appellant has taken the Court through 
the evidence on record and submitted that conviction and sentence 
awarded to the appellant was unsustainable. There are discrepancies in 
recording of prior information, resulting in violation of mandatory 
requirement of Section 42 of the Act. Reference was made to intelligence 
note, Ex.-47, a~d statement of PW4 to submit that information was 
received
one or two days prior to 26th February, 2004 during investigation 
of an earlier case while it was recorded only on 26'h February, 2004 and 
not immediately. There are contradictions in time and manner of recording 
of informatfon, Ex.18, while there is anothernote which is contradictory. 
Reliance has been placed on Abdul Rashid lbmltim Mansuri v. State 
of Gujarat1, State of Rajastltan v. Jag Raj Singlt 1 and Suklulev 
Sing/1 v. State of Haryana-'. It was further submitted that the gunny 
bag produced in Court did not carry the label and the signatures. The 
same could not be linked to the appellant. PW2 was unable to say 
whether the bag produced had seal or label or not. He also submitted 
that record of the samples was not maintained. Panchas were not 
examined. Same Panchas were used for several occasions. He also 
submitted that the statement of the accused under Section 67 amounted 
to confession before police and was no.t admissible as held in To/an 
1 (2000) 2 sec 513 
'(2016) 6 SCALE 32 
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'(2013) 2 sec 212
GIRISH RAGHUNATH MEHTA v. INSPECTOR OF CUSTOMS 
AND ANOTHER [ADARSH KUMAR GOEL, J.] 
Sinf(lt v. State of Tamil Nadu', Union of India v. Bal Mukund-', Raju 
Premii v. Customs NER Sltillonf( Unit6 and Noor Aga v. State of 
Punjab'. Even ifthe statement of the appellant under Section 67 was 
admissible, it was a weak piece of evidence and had only corroborative 
value. No independent witness was joined whi.le recording the statement. 
The appellant was in custody at the time of recording the statement. 
The statement was not voluntary. Its contents were not read over to 
him. A-2 was also in custody and his statement was also not voluntary. 
Statement of co-accused could not be taken as substantive .evidence. 
The same could not be relied upon in view of the decision in Bal Mukund 
and Raju Premji (supra). 
8. Learned counsel for the State supports the conviction and 
sentence of the appellant. He submitted that concurqmt finding of the 
courts below is based on evidence and the same is not liabie 't6 be disturbed 
. in an appeal under Article 136 of the Constitution. It was pointed out 
that the contentions advanced by the learned counsel for the appellant 
are not shown to have been raised before the High Court. He next 
submitted that Section 42 applies only when recovery is to be effected 
from a building, conveyance or enclosed place. Present case is covered 
by Section 43 as recovery is from a public place. As regards the plea of 
absence oflabel, neither any question was
raised at the time of production 
of the bag nor the fact of recovery of the contraband from co-accused 
is in dispute. Recovery was proved by independent direct evidence. 
Co-accused from whom recovery was effected has not even cha! lenged 
his conviction. As regards the record of samples, it is pointed out that 
the evidence of the chemical examiner-PW8 is categoric that all the 
samples were in sealed condition. The appellant never retracted his 
statement under Section 67 to the effect that the contraband recovered 
from co-accused was sold by the appellant and that the said co-accused 
had no licence to purchase the contraband and thereby the appellant 
contravened the conditions of his licence. He was not in custody when 
his statement was recorded as is clear from the statement of PW2-
Gerard Joseph, who recorded the statement. 
9. After due consideration, we do not find .any merit in the 
'(2013) 16SCC31 
'<2009) 12 sec 161 
0 <2009) 16 sec 496 
1 <2008) 16 sec 417 
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SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
submissions on behalf of the appellant. Both the courts below have 
concurrently held that the appellant was found to have sold the contraband 
to the co-accused without any licence. The said finding, inter alia, is 
based on the evidence of PW 1- Bhaskar Shetty, Inspector of Customs 
who seized the contraband from the co-accused- Karim Patel. Further, 
the evidence in the fonn of statement of the appellant himself(Ex.-20) 
under Section 67 of the Act before his arrest-clearly shows that the 
appellant had sold the contraband to the co-accused- Karim Patel who 
did not have any licence to purchase thereof. Even otherwise, the 
connection of contraband with the appellant was clearly established after 
which the burden was on appellant to show that he had effected sale to 
an authorized person. Recovery from the co-accused was from an 
open place to which Section 42 of the Act is not attracted. At the time 
of production of gunny bag no objection was raised on behalf of the 
appellant that the bag did not carry any label or sign of identity. Thus, 
the absence of label and sign of identity could not be presumeC!. The 
samples were duly tested by the chemical analyzer and were found to 
be intact. There is, thus, no serious infirmity in the findings recorded by 
the courts below in convicting and sentencing the appellant. 
I 0. The contention raised on behalf of the appellant on the basis 
of judgments of this
Court in Abdul Ras/ti</ lbraltim Mansuri, Jag 
Raj Singh and Suk/1</ev Singlt (supra) cannot be accepted. As already 
noticed, Section 42 of the Act has no application to the fact situation of 
the present case. The said section applies when the contraband recovered 
from a building, conveyance or enclosed place. Where recovery is from 
a public place, Section 43 applies. This Court reconciled the view taken 
in Abdul Ras/ti</ lbraltim Mansuri (supra) and Sajan Abra/tam v. 
State of Kera/«9 in larger bench judgment in Suktlev Sing It (supra). It 
was held that in view of technological advancements, it may not be 
possible to record information as per the requirement of Section 42. 
Strict compliance by the investigating agency should not be required in 
an emergency situation so as to avoid misuse by wrongdoers/ offenders/ 
drug peddlers9• Whether there is adequate substantial compliance is a 
question of fact in each case. Apart from the finding that present case 
is governed by Section 43, there is no ground to interfere with the 
concurrent finding of the Courts below that there is adequate compliance 
• 12001) 6 sec 692 
• (2009) s sec 539 - Para 34
GIRISH RAGHUNATH MEHTA v. INSPECTOR OF CUSTOMS 
AND ANOTHER [ADARSH KUMAR GOEL, J.] 
of Section 43 of the Act. 
11. Similarly, the contention on the basis of the judgments in To/an 
Singll, Raju Premji and Noor Aga (supra) also cannot be accepted. 
There can be no doubt that the Court has to satisfy itself that the statement 
under 
Section 67 was made voluntarily and at a time when the person 
making such statement had not been made an accused. Whether the 
statement is voluntary and free from encumbrance has to be judged 
from the facts and circumstances of each case. In To/an Sing It (supra), 
the question whether the investigating officer investigating the matter 
under the Act is a po lice officer and whether the statement recorded by 
the investigating officer under Section 67 of the Act can be treated as a 
confessional statement has been referred to the larger Bench. It is not 
necessary to go into this aspect in the present case as there is adequate 
evidence to prove the sale of the contraband by the appellant for which 
co-accused has been convicted and septenced. The prosecution version 
is based not only on the statement under Section 67 but also on the 
evidence of recovery of the contraband immediately after sale and the 
circumstances showing that the contraband was sold by the appellant to 
the co-accused, without any authorization. Thus, we do not find any 
ground to interfere with the conviction and sentence awarded to the 
appellant. 
12. The appeals are
dismissed. 
AnkitGyan 
Appeals dismissed. 
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