CRIMINAL APPEAL NO. 428 OF 2014

1st April 2019

Petitioner Counsel: Mr. Taraq Sayyad Ms. Lochan Chandka Ms. Sartaj Shaikh Mr. S. R. Phanse
Respondent Counsel: Ms. P. P. Shinde

Cases Cited :
Para 10: Lamin Bojang Vs. The State of Maharashtra, 1996(4) Bom. C.R. 524
Para 11: Karnail Singh Vs. State of Haryana, (2009) 8 Supreme Court Cases 539

JUDGEMENT

1. The Appellants vide Judgment and Order dated 11th and 12th March, 2014, passed by the learned Judge, Special Court for NDPS, Bombay City Civil and Sessions Court, Greater Bombay, in NDPS Special Case No.48 of 2012, have been convicted and sentenced as under:-
- for the offence punishable under Section 20(c) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- each, in default of payment of fine to suffer simple imprisonment for 6 months;
- for the offence punishable under Section 29 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- each, in default of payment of fine to suffer simple imprisonment for 6 months. The said substantive sentences were directed to run concurrently.

2. At the outset, it may be noted that the aforesaid Appeals were on board on several dates, however, as none appeared for the Appellants, this Court vide order dated 17th December, 2018, appointed Mr.S.R.Phanse in both the Appeals to espouse the cause of the Appellants. Accordingly, Mr.Phanse tendered a compilation of Judgments and a short synopsis. When the matter was posted for final hearing, Mr.Taraq Sayyad appeared in Criminal Appeal No.428 of 2014. Mr.Sayyad, during the course of the arguments stated that he has also been instructed by the Advocate of the Appellant to appear in the connected Appeal. Accordingly, I have heard Mr.Sayyed as well as Mr.Phanse in both the aforesaid Appeals.

3. The prosecution case in brief is as follows:- On 12th November, 2011, PW4 - API Vinayak Bajirao Vetal received secret information from his informer that two persons by the name Raju Dhanju Rathod and Ramesh Liganna Mudraj, both residents of Andhra Pradesh, and dealing in the business of ganja were bringing ganja from Andhra Pradesh to Mumbai, for selling it to their customers. The informer provided PW4 – API Vinayak Vetal with the description of the said two suspects and informed that they would be bringing ganja in a Silver Colour Indica Car, bearing Registration No.AP-13H-1467 via Nehru Nagar Bridge, Kurla (East), Mumbai, in front of Vatsalatai Naik Nagar via Kurla and Sion to Mumbai, at around 1.20 p.m. to 2.00 p.m. On receiving the said information, PW4 – API Vinayak Vetal noted down the same in the Information Register at around 9.30 a.m. He also noted down the said information in the Station Diary at around 10.00 a.m. It is the prosecution case, that thereafter PW4 – API Vinayak Vetal conveyed the said information i.e. forwarded a copy of the Station Diary entry to PW6 - P.I Rajendra Ganpat Sangle, In-charge of the Anti Narcotic Cell, Worli Unit (ANC Unit, Worli), as well as telephonically conveyed the information to the ACP and Senior P.I., Anti Narcotic Cell, Mumbai. It is the prosecution case, that the ACP directed PW4 – API Vinayak Vetal to work out the information under the supervision of PW6-P.I. Rajendra Ganpat Sangle. Accordingly, PW4 – API Vinayak Vetal conveyed the said directions to PW6-P.I. Rajendra Ganpat Sangle. PW6-P.I. Rajendra Ganpat Sangle then called the other officers and the staff in his cabin and informed them about the information received by PW4 – API Vinayak Vetal and asked them to prepare for the raid. According to the prosecution, PW4 – API Vinayak Vetal forwarded the computerized extract of the information recorded in the Station Diary, to the superiors. Thereafter, on the directions of PW6-P.I. Rajendra Ganpat Sangle, PN - Mohite brought two panch witnesses; the said panch witnesses were introduced to PW6-P.I. Rajendra Ganpat Sangle. PW6-P.I. Rajendra Ganpat Sangle made enquiry with the panchas, with respect to their names, occupation, address etc. and found them suitable to act as panchas in the raid. Inter se search was carried out between the officers and the panchas. No narcotic drug or any objectionable material was found in the said search. Accordingly, PW.7 – P.I.Vinayak Dattatray Badade, drew a pre-trap panchanama of the said events (Exhibit – 33). PW7- P.I Vinayak Dattatray Badade before leaving for the raid made an entry in the Station Diary. Thereafter, trap was laid at the spot on the Eastern Express Highway. At around 13.35 hours, one Silver Colour Indica Car bearing Registration No.AP-13H-1467 was spotted coming from the direction of Thane. As the description of the said vehicle was similar to that given by the informer, the suspected vehicle was stopped and the raiding party surrounded the said vehicle. Two persons were found sitting on the front seat of the car. As directed by PW6-P.I. Rajendra Ganpat Sangle, both the said persons got down from the vehicle. PW6-P.I. Rajendra Ganpat Sangle introduced him and the other persons of the raiding party to the said two persons and then took the details of the said two persons. The names of the said persons were the same, as was informed by the informer to PW4 – API Vinayak Vetal. PW6-P.I. Rajendra Ganpat Sangle apprised the said persons of their right to search under Section 50 and gave separate letters in writing to the suspects, apprising them about the said right. However, both declined the offer. Before taking the search, PW6-P.I. Rajendra Ganpat Sangle offered his search as well as search of the raiding party. However, both declined the offer. Personal search of both the accused was taken by PW6-P.I. Rajendra Ganpat Sangle, however, except currency notes nothing was found on their person. Thereafter, PW6-P.I. Rajendra Ganpat Sangle inspected the Indica Car and found gunny bags in the dicky as well as on the back seat. On opening the bags, the raiding party found green coloured leaves, flowering, fruiting tops and seeds with stalks in all the five gunny bags with strong smell. The weight of all the five gunny bags was independently taken. The total ganja seized was 102 kgs. Samples were taken and thereafter labels and signatures of the panchas were affixed on the samples as wel1 as on the gunny bags. Thereafter post-trap panchanama of the events was drawn.
It is the prosecution case, that after the formalities of raid were over, the raiding party went to the Cuffe Parade office and the muddemal was produced by P.I. Koyande. P.I. Koyande verified the articles and made enquiry with the accused individually and affixed the labels with his signatures on all the envelopes. Thereafter, PW4 – API Vinayak Vetal lodged an FIR as against both the appellants. PW7- P.I Vinayak Dattatray Badade deposited the muddemal in the store room and conducted further investigation, including taking sample packets to the Chemical Analyser. On receipt of the report from the Chemical Analyser, it was confirmed that the substance contained in the sample packets was ganja. After investigation, PW7- P.I Vinayak Dattatray Badade filed charge-sheet against both the accused, pursuant to which cognizance of the offences was taken.
The learned Judge, Special Court for Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’), Bombay City Civil and Sessions Court, Greater Bombay, framed charge against both the Appellants, to which they pleaded not guilty and claimed to be tried. The defence of the Appellants was that of total denial and of foisting of ganja seized from somebody else in their name.
The prosecution in support of its case examined 7 witnesses. PW1—Sanjay Shamrao Prabhavale (Chemical Analyser); PW2 – Tanaji Bhagwan Gadave, Storekeeper attached to the Azad Maidan ANC Unit (panch to the seizure of ganja from where the contraband was recovered); PW3-Pramod Vitthal Tanawade (carrier); PW4-API Vinayak Bajirao Vetal, who received the information and was a part of the raiding party and who later lodged the FIR; PW5-Ajay Virendra Singh, panch to the seizure of the contraband; PW6-P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade (Investigating Officer). The prosecution relied on several documents i.e. FIR, Pre-trap panchanama, Post-trap panchanama, Station Diary entries, Chemical Analyser Report etc.

4. Learned Counsel Mr.Sayyad and Mr.Phanse, submitted that the Appellants have been falsely implicated in the said case and that there is non compliance of Section 42(2) of the NDPS Act, inasmuch as, no copy of the information was sent by PW4–API Vinayak Vetal to his superiors. They further submitted that what is alleged to have been sent is not a copy of the Information Register, but, a copy of the Station Diary entry, which also is suspect. They submitted that if the information was sent as alleged by PW4 – API Vinayak Vetal to his superiors at Cuffe Parade office, there ought to have been an inward number to the said document i.e. copy of the Station Diary entry (Exhibit-29) and not an outward number. They therefore submitted that the entire prosecution case is suspect and that no information as alleged emanated from the Anti Narcotic Cell (ANC), Worli Unit. They submitted that there are several inconsistencies and contradictions in the evidence of PW4 – API Vinayak Vetal, PW5-Ajay Virendra Singh, PW6- P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade with respect to the seizure, where the panchas were taken after the raid, etc., thus raising several questions with regard to the seizure of the contraband. They further submitted that both PW6-P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade have categorically admitted in their cross examination that a copy of the information sent by PW4 – API Vinayak Vetal, was not received by them. They further submitted that neither is there any endorsement on the said information i.e. the copy of the Station Diary made by PW6-P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade. They, submitted that the evidence of PW7- P.I Vinayak Dattatray Badade is infact contrary to the contemporaneous record and as such cannot be relied upon. They, therefore, submitted that on this very ground i.e. of non-compliance of Section 42(2) of the NDPS Act, the conviction and sentence of the Appellants is required to be set aside.

5. Learned A.P.P. submitted that no interference was warranted in the impugned Judgment and Order.

6. Heard learned counsel for the parties at length and with their assistance perused the evidence of the witnesses and the documents on record.

7. At the outset, it may be noted that several submissions were advanced on various aspects by the learned counsel Mr. Sayyad and Mr.Phanse, however, as both the Appeals need to be allowed on the point of non-compliance of Section 42(2) of the NDPS Act, none of the other submissions need to be dealt with or considered.

8. Section 42 of the NDPS Act reads as under:-
“42. Power of entry, search, seizure and arrest without warrant or authorisation. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorisation 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 and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]”
(emphasis supplied)

9. As far as Section 42(1) is concerned, there is no dispute that the information so received was reduced into writing by PW4 – API Vinayak Vetal. According to PW4 – API Vinayak Vetal, his informer disclosed to him, that on 12th November, 2011, in the afternoon between 1.20 p.m. to 2.00 p.m., two persons (names given) were to come from Andhra Pradesh to Mumbai in a Silver Colour Indica Car, bearing Registration No.AP-13H-1467 for selling ganja. Details from where the car would be coming were given. Accordingly, PW4 – API Vinayak Vetal reduced the said information in the Information Register (Exhibit – 25) at 9.30 a.m. as well as in the Station Diary (Exhibit – 29) at 10.00 a.m., kept at the Anti Narcotic Cell (ANC), Worli Unit, Mumbai. Admittedly, PW4 – API Vinayak Vetal had not sent the said copy of the information reduced in the Information Register to his superiors at the Cuffe Parade office. As far as the copy of the Station Diary containing the information, allegedly sent by PW4 – API Vinayak Vetal to the Cuffe Parade office, is concerned, the contemporaneous record i.e. Exhibit – 29 (copy of the Station Diary) allegedly sent to the Cuffe Parade Office, is riddled with several infirmities, inasmuch as, it does not show that the information was received by the superiors. The copy of the Station Diary (Exhibit – 29) shows an outward number of the Cuffe Parade office, instead of an inward number. None of the witnesses i.e. PW6-P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade have given any explanation how the copy of the Station Diary contains an outward number. If the Cuffe Parade office had received the information, there ought to have been an inward number. Although, PW6-P.I. Rajendra Ganpat Sangle states that the entry was subsequently corrected, no document was placed on record to show the correction. Nor does PW6 - P.I. Rajendra Ganpat Sangle say that the mention of outward number was a mistake. Both, PW6-P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade have in their cross examination admitted that the copy of the information sent by PW4 – API Vinayak Vetal, was not received by them. Section 42(2) of the NDPS Act requires/stipulates that the information needs to be forwarded to the superior officers. The evidence on record clearly shows that there is a breach of Section 42(2) of the NDPS Act.

10. The Division Bench of this Court (Coram: Vishnu Sahai and S.S.Parkar, JJ.) in the case of Lamin Bojang v/s The State of Maharashtra, 1996(4) Bom. C.R. 524 has in para 13 observed that “When an obligatory duty is cast by the statute, as section 42(2) of the N.D.P.S. Act casts on the officer receiving information to inform his immediate Superior Officer, the question whether prejudice is caused or not to the accused on account of the non-performance of that duty is immaterial. What the Court has to examine is whether the mandatory obligation has been strictly carried out by the authority enjoined in law to carry out”. It is further observed that in the case, the mandatory requirement under section 42(2) was to send a copy of the information. That was not sent.

11. In Karnail Singh v/s State of Haryana, (2009) 8 Supreme Court Cases 539 the Constitution Bench of the Apex Court in para 35(d) held as under:-
“35. …........
(a) …..
(b) ….
(c) …..
(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001”.

12. In the present case, secret information received was reduced into writing, first in the Information Register and then in the Station Diary; and thereafter a copy of the Station Diary was allegedly sent from Worli Office to the Cuffe Parade Office. However, the contemporaneous record (Exhibit – 29) shows, that instead of an inward number, there is an outward number given by the Cuffe Parade Office. It is also pertinent to note that both PW6-P.I. Rajendra Ganpat Sangle and PW7- P.I Vinayak Dattatray Badade have admitted in their cross examination that they had not received a copy of the information i.e. Station Diary (Exhibit – 29). There is no satisfactory explanation given by PW6-P.I. Rajendra Ganpat Sangle or PW7- P.I Vinayak Dattatray Badade with regard to how the document (Exhibit – 29) mentions an outward number, if the said document is received by them from the Worli Office.

13. Another factor, which also raises some suspicion with regard to the raid, is the contradictory evidence that has come on record, i.e. PW5-Ajay Virendra Singh and PW6-P.I. Rajendra Ganpat Sangle have stated that soon after the raid, they went to the Worli Unit, Mumbai, whereas, the evidence of PW7- P.I Vinayak Dattatray Badade shows that the raiding party was brought to the Cuffe Parade, ANC Unit, Mumbai.

14. Considering the evidence on record, I am of the view that in the facts, Section 42(2) of the NDPS Act, has not been complied with. The prosecution has not proved that the copy of the information was received by the superiors. There is no explanation for the outward number on the copy sent to the Cuffe Parade Office. As there is non-compliance of Section 42(2) of the NDPS Act, the other submissions raised by the learned Counsel Mr. Sayyad and Mr.Phanse need not be considered. As stated above, the Appeals ought to succeed on this very ground. Hence, following order is passed:
ORDER
i) The Appeals are allowed;
ii) The Judgment and Order dated 11th and 12th March, 2014, passed by learned Judge, Special Court for NDPS, Bombay City Civil and Sessions Court, Greater Bombay, in NDPS Special Case No.48 of 2012, convicting and sentencing the Appellants is quashed and set aside;
iii) The Appellants are acquitted of the offences, with which they are charged. They be released forthwith, if not required in any other case. Fine amounts, if paid, be refunded back to the Appellants.

15. I would like to record a word of appreciation for the able assistance provided and the efforts taken by Mr.S.R.Phanse, as an appointed advocate, in conducting the appeals. High Court Legal Services Committee to award fees of the learned Appointed Advocate, as per Rules.