Criminal Appeal No.1323 of 2002,Criminal Appeal No.1200 of 2002,Appeal No.1977 of 2003,Criminal Appeal No.1302 of 2002

29th November, 2003

Petitioner Counsel: Shri. ANIL LALLA, M/s. LALLA & LALLA
Respondent Counsel: Shri. K. V. SASTE
Other Counsel: Shri. P. S. THAKUR

Cases Cited:
State of Punjab Vs. Baldev Singh, 1999 SCC (Cri) 1080 [Para 10,17]

JUDGMENT

JUDGMENT :- The appellants in the above mentioned appeals are assailing correctness, propriety and legality of judgment and order passed by the learned Special Judge under Narcotic Drugs and Psychotropic Substances Act for Greater Bombay in N.D.P.S. Special Case No.604 of 2000, wherein the learned Special Judge had convicted the appellants for offence under Section 8(c) punishable under Sections 21 and 29 of Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as N.D.P.S. Act for convenience). Appellants Pramod Sheetal Prasad Kaknani, Naresh Ramswarup Choudhary and Sardar Mohammed Wali Mohammed have been sentenced to undergo rigorous imprisonment for 10 years each and to pay fine of Rs. one lac each, in default of the payment of fine to undergo further rigorous imprisonment for six months each, for each offence. Appellant Naresh Ramswarup Choudhary has been held guilty for the offence under Section 8(c) punishable under Section 25 of the N.D.P.S. Act and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lac and in default to suffer further rigorous imprisonment for six months. The substantive sentences have been directed to run concurrently. The co-accused Nirmala Naresh Choudhary has been acquitted.

2. The prosecution case, in brief, is that the Intelligence Officer of Narcotic Control Bureau, Mumbai, collected information that one Naresh Choudhary (present appellant- Accused No.2) was residing in flat No.5, Building No.18, Sector 48, Nerul, Navi Mumbai and was storing narcotic drugs in that flat. The said information was noted down and was forwarded to Divisional Zonal Superintendent, Shri. Ajay Ubale, as Superintendent Shri. C.I. Mathew and Assistant Director Shri. Vijaydharan were not available. Shri. Ubale asked Jitendra S. Dubey, who had collected said information and Shri. Namboodri to form aunit to search the said flat and to work on the said information. They were to be assisted by other staff members. Out of them, the prosecution has examined Narale, Kanta Tejwani and Mr. Namboodri. Panch witness Shri. Pawar has been examined.

3. When raiding party went to the said flat and pressed the bell, appellant Naresh Choudhary opened the door and when the members of raiding party entered the said flat, they noticed that two persons and one woman were present in the front room of the said flat. The raiding party informed those present in that flat that they were at liberty to get the said flat searched in presence of Gazetted Officer or Magistrate. But all of them declined, as per prosecution case. The said flat was searched and in the bed room, beneath the bed, a polythene bag containing brown sugar was found. It was seized in presence of panch witnesses and two sample packets each containing 5 grams of brown sugar was packeted and those packets were sealed with paper seals bearing signatures of panch witnesses. All the appellants and Nirmala Choudhary were taken to the officer of N.C.B., where their statements were recorded by concerned officer. The Statement of Sardar Mohamed Wali Mohamed was recorded by Shri. P.S. Namboodri, Statement of Naresh Choudhary was recorded by Shri. Jalil Shaikh, Statement of Nirmala Choudhary was recorded by Smt. Kanta Tejwani, Statement of Pramod Kaknani was recorded by Shri. Narale. Shri. Naresh Choudhary was arrested on 3/2/2000, while Pramod Kaknani and Sardar Mohammed Wali Mohamed were arrested on 4/2/2000. The seized brown sugar was dispatched to F.S.L., Kalina, on 7th of February, 2000, as 5th and 6th February, 2000 were holidays. After necessary inquiry the charge-sheet was filed against all four persons and they faced the trial, in which the order of conviction and sentence as mentioned above was passed by the trial Judge, which is the subject matter of challenge.

4. Shri. Lalla, appearing for appellant Naresh Choudhary, submitted that the trial Judge committed the error in convicting and sentencing Naresh Choudhary by ignoring important infirmities in prosecution evidence. Firstly, he pointed out that information was received at about 1.30 p.m. but it was not recorded and it was not sent immediately to the Superior Officer of P.W. Dubey and on account of that prosecution case gets damaged. He further, submitted that when the information was received on 3/2/2000 at 1.30 p.m., how the members of raiding party could go to Nerul for effecting the raid at 4 p.m. According to him, it was as good as impossible. He submitted that the trial Judge ignored this important aspect of the case, which was shattering the credibility of the prosecution case. Shri. Ayaz Khan and Shri. Mooman, appearing for Pramod Kaknani and Sardar Mohammed Wali Mohammed, supported this argument advanced by Shri. Lalla. However, Shri. Thakur appearing for complainant N.C.B. and Government of India, as well as Shri. Saste, A.P.P., for State of Maharashtra opposed this submission. They submitted that the evidence on record shows that some of them had gone by using departmental vehicle, some of them went to Nerul by train. They submitted that one can go to Nerual from Ballard Estate within two hours and here in this case, the members of raiding party were having two and half hours at their disposal. They submitted further, that when immediately superior officer, the Superintendent, was not available, there was nothing wrong and illegal in dispatching the said information to Divisional Zonal Officer, Ajay Ubale.

5. This Court finds substance in the submission advanced on behalf of the prosecution on this point. The information has been recorded at Exh.8 and that has been acted on, when Divisional Zonal Officer, Ajay Ubale made endorsement on it directing P.W. Dubey and Namboodri to form unit to effect the raid by surrounding the said flat and by searching it. When immediately superior officer is not available, the information can be sent to an officer above him. There is nothing on record to show that by adopting this process, any prejudice has been caused to the appellants.

6. Furthermore, it is important to note that as the experience tells a person can easily go from Ballard Pier area to Nerul by getting train within one hour and by utilising the car or automobile vehicle, he can very well reach Nerul within one and half hour. In this context, appropriate latitude has been given to the possibility of traffic jam on road and rail traffic. Therefore, this Court dismisses the criticism levelled by defence on this point.

7. Shri. Lalla, Khan and Mooman criticised the statements recorded by N.C.B. Officers, so far as present appellants are concerned. They submitted that those statements are in the nature of confession and statements by themselves show that undue influence and coercion has been used on these appellants. Shri. Thakur and Shri. Saste opposed this statement. This Court finds no substance in the submissions advanced on behalf of the prosecution on this point for the reasons stated hereunder.

8. It is the prosecution case that appellant Pramod Kaknani and Sardar Mohammed Wali Mohammed were found in the front room with Naresh Choudhary and his wife Nirmala. It is prosecution case that they were well acquainted with each other. When that was so, then what was the need of showing other accused to respective appellants-accused, when their statements were recorded?. It was as good as confronting them by their presence and creating undue influence and coercion on them. It is as good as creating a picture of fear in the mind of respective accused that other accused has or have given a different statement or Statements which N.C.B. officers were wanting from them. This is polluting so called voluntariness behind the said statements, as contended by the prosecution. Those statements cannot be called as voluntary, on account of said tactics played by N.C.B. Officers.

9. Apart from Naresh Choudhary, none of the accused was knowing English properly. Sardar Mohammed Wali Mohammed was obviously a Hindi speaking person and his evidence shows that they were away from the knowledge of English. Pramod Kaknani hails from Hindi speaking region and evidence on record and statement recorded do not show that he was well conversant with English. Even though, the interrogation was made in Hindi, however, statements were recorded in English. This is absolutely a condemnable thing. If the investigating agency, the prosecution, is contending that their statements are voluntary, it has to be in the language in which the said accused answered the questions put to him. Hindi is National language. All the citizens of India unless, contrary is shown know and understand Hindi. When that is so, what is the necessity of recording their statement in English. The officer or Investigating Agency may say that those statements spoken in Hindi or Marathi were translated by them in English and they were so explained to concerned accused in their own language, damaged one does not get washed. The officer of Investigating Agency is likely to get reward in case of conviction and therefore, his interest would be in getting conviction in the matter. Therefore, his role normally is looked with suspicion and it gets strengthened, so for as suspicion is concerned, when accused is speaking in Hindi or Marathi and statement is recorded in English. When such Statements are retracted immediately or within a reasonable time, such suspicion gets more strengthened and such statements become deprecatable.

10. The statements which are to be recorded in view of Section 67 of N.D.P.S. Act, are to be recorded for the purpose of gathering information, as to how the offences took place. It is not for the purpose of couching confession in it. Generally, the officers of Investigating Agency couch those statements, as if accused have confessed and at the time of trial the prosecution intends to utilise them as confession of such accused or admission on the part of such accused. How that can be permitted when the statement are recorded by using undue influence, coercion on such accused?. They are to be recorded by following the safeguards as indicated by Section 164 of Code of Criminal Procedure, 1973. It should be free from any inducement, threat, coercion and undue influence. If not, such statements would not be admissible in evidence, because, that is the misuse of section 67 of N.D.P.S. Act and the material which has been collected by using illegal means has to be discarded, as indicated by Supreme Court in the case of State of Punjab Vs. Baldev Singh, reported in 1999 Supreme Court Cases (Cri) 1080. It has been noted that the number of subordinate Judges, misconstrue the judgment of Single Bench of this Court on that point. They misread it and in this case, the learned trial Judge has committed the same blunder. It is admissible in evidence, it can be considered but to its legal evidentiary value and strength and within its legal limitations.

11. The statements recorded in view of provisions of Section 67 of N.D.P.S. Act cannot be equated with statements recorded in view of Sections 108 and 135 of Indian Customs Act, 1962 (hereinafter referred to as Customs Act for convenience). In Section 108 the words mainly used are "Evidence" "Summons issued for recording evidence" and "enquiry" to be held for recording such evidence". Section 67 does not even indicate that such an officer is authorised to record "evidence". He is not empowered to record the evidence in enquiry. A specific offence has been indicated by provisions of Section 108, if the person fails to appear for giving evidence in the said enquiry, interrogation in context with summons served on him. That is not the case exactly, so far as Section 67 of N. D.P.S. Act is concerned. The person may be committing the offence in view of Indian Penal Code, if he refuses to obey the order of said public servant or refuses to make a statement in that context. But again there is possibility of a debate on the point, whether a person can be compelled to give such statement, which would be used against him. Keeping in view, the protection granted to him in view of Article 20(3) of the Constitution of India. Thus, statement recorded in view of provisions of Section 67 of N.D.P.S. Act cannot be equated with statements recorded in view of section 108 of Customs Act, as this Court views. The Supreme Court has nowhere stated that those statements are similar, equal and having equal credence, which appreciating or scanning the evidence on record or while adjusting guilt or innocence of accused. Some of the trial Judges committed error, while understanding the meaning of the judgment of single Bench on this point. The learned trial Judge has committed blunder on this point and misled himself by misreading the said judgment. It stands deprecated.

12. It is pertinent to note that while recording the statement in view of provisions of Section 67 of N.D.P.S. Act, in this Case, every accused whose statement has been recorded has been warned that his statement would be used against him in the trial and if he disobeys the summons, he would be committing an offence. Said accused was warned that incorrect statement would amount to an offence. Is it not equivalent to giving him a threat? Certainly it is sufficient to create apprehension in the mind of person giving statement and that would be taking out the semblance of voluntariness. So far as appellant Sardar Mohammed Wali Mohammed is concerned, he was warned that his statement was likely to be used against him, as evidence. His statement was likely to be used against him in the enquiry also. In view of these facts how it can be said that those statements were voluntary?.

13. Statements recorded in view of provisions of Section 67 of N.D.P.S. Act can be considered by Court for arriving at the truth in adjudication of guilt or innocence of the accused. But that can be used or can be considered to a limited extent, when there is other evidence available against the accused and Court is satisfied about the availability of evidence to that extent against such an accused, in that context the Court can consider such statement recorded. While doing so, the Court would be bound to inform itself that all the statements amounting to confession will have to be brushed aside in the interest of justice while adjudicating the guilt of the accused. Only legal inculpatary material can be used against such accused in the process of assessing the guilt or innocence of the accused.

14. For the purpose of assessing the extent of such statement, it can be used against a particular accused. So far as this case is concerned, this Court will have to advert its attention to the evidence of prosecution witnesses brought forth for proving the guilt of the appellants. P.W. Dubey, P.W. Namboodri, P.W. Narale, P.W. Kanta Tejwani, P.W. Pawar and P.W. Khilare have been examined on this point. It is the evidence of P.W. Dubey, Narale, Namboodri, Kanta Tejwani, and Pawar that when they visited the said flat No.5 and when the door was opened by appellant Naresh Choudhary, they saw in addition to Naresh Choudhary, one woman and two persons present in the said flat. All these witnesses stated that they were 1) appellant Pramod Kaknani, 2) Naresh Choudhary, 3) Nirmala Choudhary and 4) Sardar Mohammed Wali Mohammed. It is their evidence that they searched the said flat, one after another room and below the bed they found a polythene bag containing brown sugar. S/Shri. Lalla, Khan and Mooman, submitted that none of these prosecution witnesses is able to say, that he took out the polythene bag containing brown sugar. Therefore, their evidence cannot be believed. They submitted that panch witness Pawar took out the said polythene bag from the bed room. They submitted that panch witness was not authorised to take the search and therefore, said search happens to be illegal. In this context, they also submitted that no warrant was obtained, no formalities indicated by section 42 of N.D.P.S. Act have been complied with and therefore, on this count also the search is illegal. S/Shri. Thakur and Saste opposed this point and submitted that the search was very much legal and there is no flaw at all in the prosecution evidence in this case.

15. P.W. Khillare and P.W. Pawar have stated that said flat No.5 was in occupancy of appellant Naresh Choudhary and he was residing in the said flat along with his wife. The articles of daily use have been found in the said flat, which shows that the appellant Naresh Choudhary and his wife Nirmala were residing in it daily. It is pertinent to note here that neither Pawar nor Khillare says that when they were present in the said flat, either Pramod Kaknani or Sardar Mohammed Wali Mohamed were noticed by them. Their evidence also does not show that they had seen either Pramod Kaknani or Sardar Mohammed Wali Mohammed present in the said flat even between 29/1/2000 to 3/2/2000. This aspect is quite important, because it is the prosecution case that both of them were camping in the said flat since 29/1/2000 and they were there for the purpose of selling brown sugar to Naresh Choudhary. Therefore had these persons were really staying in the said flat from 29/1/2000 to 3/2/2000, both of them or either of them would have been noticed. It is pertinent to note at this juncture that it has been indicated by the evidence on record that the complaint was made by the office bearers of the said Housing Society and on account of that, the attention of the officers of N.C.B. was attracted towards the said flat and said raid was effected. It has been indicated that Khillare has made a complaint to the police about Naresh Choudhary and Sardar Mohamed Wali Mohammed and therefore, said raid was initiated. It has to be noted that it happens to be the tone of cross-examination done for appellant Naresh Choudhary. It has been suggested by the defence that some information was lying on the table of P.W. Dubey or he received a telephone call or some information was lying near his table. It means that both prosecution and defence indicated that somebody made a complaint and therefore, raid was initiated. When that was so, how these two persons could not be noticed?. Why the prosecution should not be with the evidence of some other witnesses, who reside in the said society or in the near proximity of the said flat, to state on oath that both Pramod Kaknani and Sardar Mohammed Wali Mohammed were present in the said flat prior to visit of above mentioned prosecution witnesses for N.C.B. or at the time when prosecution says that they visited the said flat.

16. Though, prosecution evidence adduced through the mouth of prosecution witnesses Dubey, Narale, Namboodri, Kanta Tejwani does not specifically state, as to which of the officer took out said polythene bag from below the bed in the bedroom, it has come in the evidence of P.W. Pawar in the cross-examination that police officer took the said polythene bag from beneath the bed in the bed room. Therefore, this Court dismisses the criticism levelled by the defence on this point. Apart from that it is not necessary to mention the name of the particular officer and to say that he took out the bag containing brown sugar - narcotic drug or a valet containing narcotic drug. The evidence has to be assessed as a whole and if it is done, this Court does not find any doubt that the said polythene bag was found below the bed in bed room of the flat, which was occupied by Naresh Choudhary and his wife. When narcotic drug has been found in the flat, which was occupied by Naresh Choudhary, the burden lies on him to explain as to whether he possessed the said narcotic drug, lawfully or in contravention of provisions of N.D.P.S. Act.

17. The evidence adduced by prosecution in this case, is not above board totally. It has got infirmities. It is falling short on some points. The officers have used unlawful means for the purpose of recording the statements of the appellants inview of the provisions of section 67 of N.D.P.S. Act. In paragraph 57 sub-para 4 of the judgment of the Supreme court in Baldev Singh's case (supra), the Supreme Court has pointed out specifically that;

"That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statue scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial would render the trial unfair."

It can be used in context of not following other important provisions of law also. The evidence collected by investigating agency by following tricky methods also deserves to be discarded. But while discarding such evidence the Court has to accept legal evidence only. The evidence which Court finds to be feeble has to be discarded. The evidence which is strengthening the conclusion and truth has to be accepted as a matter of assurances.

18. It is pertinent to note in this case that if it is the prosecution case, that the appellant Pramod Kaknani and Sardar Mohammed Wali Mohammed were present in the said flat at about 4 p.m. on 3/2/2000, why they were not arrested immediately that date?. Why their arrest was postponed to 4/2/2000?. The prosecution has not answered that. If those two persons were present in the said flat at that time and when Narcotic drugs-brown sugar was found below the bed of the bed room of said flat No.5 kept by Naresh Chodhary, why these two appellants were not arrested after panchanama was completed?. Why their statements were not recorded immediately?. Why the statements of all accused were not recorded immediately, is a question, which prosecution could not answer in this case. Why the repeated statements of the appellants were recorded afterwards by sufficient time gap, is also a question not answerable or not answered by the prosecution in this case. When it is the prosecution case, that all 4 accused were present in the said flat when the officers of N.C.B. visited it, what was the necessity of every body being shown to each other for the purpose of identification?. It was a farce and it was done for the purpose of showing that the investigating agency was going fairly and was above board. Extra acting exposes the falsehood. Extra manoeuvring exposes falsehood and in this case exactly it has happened. Therefore, this Court discards all the statements of all the appellants taken by following the process which is not consistent with the provisions of law. Thus, this Court comes to the conclusion that on 3/2/2000 at 4 'O' clock or near about that time appellants Pramod Kaknani and Sardar Mohammed Wali Mohammed were not present in the said flat. There is every good ground for coming to the conclusion that they must have been falsely implicated in this case later on, probably on 4/2/2000, when their statements were recorded and when they were arrested. At this juncture, it is important to note in fairness, lapses on the part of investigating agency. It is their case that the said brown sugar was to be sold to one Ratan residing in Fort. Why said Ratan was not searched, by taking help of Naresh Choudhary or Sardar Mohammed Wali Mohamed, if prosecution case happens to be true?. Why attempts were not made to trace out said Ratan, resident of Fort? and why he was not arrested and why he was not shown accused along with these appellants? Prosecution has not answered and this aspect of the case puts the last stick on the back of camel, which is to be collapsed and so far as appellants Pramod Kaknani and Sardar Mohammed Wali Mohammed are concerned, the prosecution case - camel has collapsed.

19. The trial Court has rightly acquitted Nirmala, wife of Naresh Choudhary because, when the said flat was in occupancy of Naresh Choudhary and he happened to be Karta of the said family, was responsible for infringment of law for possessing any contraband article, so far as this case is concerned, brown sugar - which was seized by investigating agency under panchanama. On this point panch witness Pawar has also supported the prosecution case and evidence of prosecution witnesses Dubey, Narale, Namboodri and Kanta Tejwani deserves to be accepted to that extent only.

20. Thus, prosecution has proved in this case that appellant Naresh Choudhary was found in possession of said brown sugar, in the said flat kept by him, as proved by the evidence of above mentioned prosecution witnesses as well as evidence of P.W. Pawar, and Khillare. When that was so, the burden was on appellant Naresh to rebut it but he has not done it in this case. Therefore, prosecution has proved that the appellant Naresh Choudhary is guilty of the offences under Section 8(c) punishable under Sections 21, 29 and 25 of N.D.P.S. Act.

21. The learned trial judge has rightly drawn the conclusion in respect of guilt of appellant Naresh Choudhary. The said conclusion has been borne out by the evidence on record. This Court confirms it. The trial Judge committed an error in concluding that appellant Pramod Kaknani and Sardar Mohammed Wali Mohammed are guilty of the offence under section 8(c) punishable under sections 21 and 29 of N.D.P.S. Act. The conclusion drawn by the learned trial Court are incorrect, inconsistent with evidence on record and on improper interpretation of relevant law. He has misread the evidence on record in respect of these two appellants. Therefore, he landed in error of recording finding of conviction and sentence against them. This Court sets aside the said finding.

22. Thus, appeals filed by the appellants Pramod Kaknani and Sardar Mohammed Wali Mohammed are hereby allowed. The order of conviction and sentence recorded against them stands set aside. They are hereby acquitted and set free, if they are not required in any other investigation, enquiry, proceeding or trial.

23. The appeal preferred by appellant Naresh Choudhary stands dismissed. He has to undergo sentence inflicted by the trial Court.

24. No interference in the order of disposal of the property.

25. The appeal has been decided and as Pramod Sheetal Prasad Kaknani has been acquitted, this Court does not find any need for hearing the bail application preferred by him, bearing Criminal Application No.1977 of 2002. It stands disposed of.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court stenographer/Sheristedar of this Court.

Order accordingly.