CRIMINAL APPEAL NO. 1256 OF 2013

24th January 2020

Petitioner Counsel: Mr. Anil G. Lalla Ms. Aanchal Lalla Ms. Hetri Mota Mr. Ayaz Khan Mr. Dilip Mishra Mr. Abhaykumar Apte
Respondent Counsel: Ms. Purnima H. Kantharia Mr. S. R. Agarkar
Act Name: Evidence Act, 1872 Code of Criminal Procedure, 1973 Narcotic Drugs and Psychotropic Substances Act, 1985

HeadLine : Narcotic Drugs and Psychotropic Substances Act (1985), Ss. 8(c), 20(b)(ii)(c), 42, 50, 67 – Possession of charas – Conviction – Validity – Accused persons alleged to have procured, possessed and were transporting charas interstate – Charge was not properly explained to accused causing grave prejudice to accused – There is violation of provisions of Ss. 42, 50, 67 – Prosecution has not followed statutory or mandatory provisions of NDPS Act – Prosecution has also not been able to prove search and seizure of contraband in accordance with law – Accused are entitled to benefit of doubt – Conviction of accused, improper.

Section :
Section 30 Evidence Act, 1872 Section 211 Code of Criminal Procedure, 1973 Section 212 Code of Criminal Procedure, 1973 Section 213 Code of Criminal Procedure, 1973 Section 235(1) Code of Criminal Procedure, 1973 Section 313 Code of Criminal Procedure, 1973 Section 8(c) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 20(b)(ii)(C) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 23(c) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37 Narcotic Drugs and Psychotropic Substances Act, 1985 Section 42 Narcotic Drugs and Psychotropic Substances Act, 1985 Section 50 Narcotic Drugs and Psychotropic Substances Act, 1985 Section 50(1) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 52-A Narcotic Drugs and Psychotropic Substances Act, 1985 Section 67 Narcotic Drugs and Psychotropic Substances Act, 1985

Cases Cited :
Para 36: Karnail Singh Vs. State of Haryana, (2009) 3 SCC (Cri.) 887
Para 38: Arif Khan Vs. State of Uttarakhand, 2018 AIR (SC) 2123
Para 39: State of Rajasthan Vs. Parmanand and Anr. (2014) 2 SCC (Cri) 563
Para 41: Dehal Singh Vs. State of Himachal Pradesh, (2010) 9 SCC 85
Para 43: Khet Singh Vs. Union of India, (2002) SCC (Cri) 806
Para 48: Union of India Vs. Bal Mukund and Ors. 2009(2) RCR (Cri.) page 574
Para 49: Shaikh Maqsood Vs. State of Maharashtra, reported in Criminal Appeal No.898 of 2009

JUDGEMENT

1. The appellants herein are convicted for the offences punishable under sections 8(c), r/w section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”). The Accused Nos.1 – Ashok Saglani and Accused No.2 – Yashwant Patil are sentenced to suffer RI for 10 years and fine of Rs.1 Lakh each. Accused Nos.1 and 2 alongwith Accused Nos.3 – Bhima More and Accused No.6 - Chand Shaikh are also convicted for the offence punishable under section 29 r/w section 8(c) and section 20(b)(ii)(C) of NDPS Act to suffer RI for 10 years and fine of Rs.1 Lakh each vide Judgment and Order dated 21st May 2013 passed by the learned Special Judge, N.D.P.S. Act, Thane. Being aggrieved by the said Judgment and Order, the appellants have filed the present appeals. The case of the prosecution in nutshell is as follows :-
On 13th January 2012, PW-4 Mr. Dole, Intelligence Officer received specific information to the effect that the persons named Ashok, Yeshwant and Bhima are travelling in White Colour Tavera Car bearing Registration No. MH-05 AB-7540 and entering through Charoti Toll Naka of IRB and that they have taken delivery of substantial quantity of charas/ hashish. After following the due procedure of law, NCB had formed a team and had reached Charoti Toll Naka on 14th January 2012 at midnight. They had summoned two panchas. They had apprehended the said vehicle. Upon inquiry Vasant @ Ashok Saglani had disclosed that he was carrying 8 packets of hashish of about 600 gms each which was placed in a blue and ash colour cloth bag beneath the rear seat of the said vehicle. NCB officers were of the view that search of the entire vehicle needs to be taken and therefore, had taken the vehicle to the office of NCB at Ballard Pier, Fort. Panchas had accompanied them. Personal search of the accused persons was taken by the officers after apprising them of their right under section 50 of the NDPS Act.

2. During the search of the said car they had opened the box comprising 15 dark grey coloured cylindrical shape substances and weighed the said packets. The weight was 600 gm each. They had drawn samples from the said packets and they were tested by multiple narcotic drug field testing kit and the test was positive for presence of hashish. The total number of packets was 123 weighing 4.8 kg. The statements of the accused were recorded under section 67 of the NDPS Act and NCB had also seized personal belongings including the cell phones of the accused persons. After completion of investigation complaint was filed by PW12 and the case was registered as Special Case No.32 of 2012. The prosecution examined as many as 12 witnesses to bring home the guilt of the accused. The case of the prosecution mainly rests on evidence of PW1, PW2, PW4, PW6, PW8, PW10, PW11 and PW12.

3. PW1 – Mr. C. Fernandez was officiating as Superintendent in NCB Zonal Unit. According to him, on 13th January 2012 at about 3.45 pm he was informed by Mr. Dole that the accused persons are travelling from Gujrat to Mumbai. That they are carrying contraband articles in huge quantity and that it would be necessary to intercept the said vehicle at Charoti Toll Naka and he was directed to take further action. Information note is at Exh.36. Recitals of Exh.36 would show that the information was noted down at about 3.45 pm on 13th January 2012.

4. According to him, on 14th January 2012 Davinder Singh who was in-charge of the investigation had reported about the seizure of 4.8 kg of charas and articles like cell phone, Punjab National Bank deposit slip in the name of Jahur Tata and Tavera vehicle. Witness had placed on record the copies of the godown entry and has proved it to be in his handwriting.

5. There are certain admissions given by PW1 which go to the root of the matter such as that, NCB does not maintain information register nor attendance register which is marked at Exh.36. That Exh.36 dated 13th January 2012, does not indicate the date and time when it was seen and endorsed by PW1. However, there is an improvement that the very fact that Exh.36 was put up before PW1 on 13th January 2012 would indicate that he had received it on the same day. However, the said information does not show the exact time when it was received. That there is no mention that the said Tavera vehicle would reach Charoti Naka on 14th January 2012.

6. It is further admitted in the cross-examination that the statement of PW1 was never recorded in this case. That except godown register there is no record relating to arrest of the accused, search and seizure record. It is also admitted that in the arrest panchanama there is no mention of the statement of the respective accused. It is also admitted by PW1 that he has no executive powers unless he is involved in the case personally. It is also admitted that Exh.36 indicates that Mr. Dole had requested surveillance at particular place to apprehend the persons named in the secret information and that PW1 had not granted the said request. It is clear from the cross-examination that the witness could not substantiate that he had been apprised of the said information and has endorsed upon it on 14th January 2012. He has categorically admitted that he is not aware of the provisions under section 52-A of NDPS Act which contemplates proportion of memorandum at the time of depositing muddemal article. He had received carton in a sealed condition. It is true that the rules contemplate mentioning of the number and date as and when he receives the same. However, the same is not mentioned in Exhs.40 and 41 neither there is any mention of any vault or safe or godown.

7. The witness has admitted the contents of Exh.40-A but has candidly stated that column no.7 was filled in subsequently. There are several anomalies in the forms that are filled up.

8. PW2 – Amit Kumar Tiwari was working as Intelligence Officer in NCB. According to him, on 29th March 2012, he was instructed by the Assistant Director Pravin Kumar to conduct house search of Chand M. Shaikh. He had immediately formed a team and reached the assigned spot at about 11.30 pm. He had introduced himself to Yunus and Asif. He had apprised the said two persons about the background in which he had come for house search. The said house belonged to the brother of Chand M. Shaikh i.e. Khwaja Shaikh. PW2 was informed that Shri Chand is residing in Shrikrishna Nagar at Kalyan. He had then been to the place of Chand Shaikh and that no incriminating article was found. That they had met Tousif i.e. younger brother of Chand M. Shaikh at his house. Panchanama is dated 29th March 2012.

9. It is admitted in the cross-examination that he knows the difference between narcotic drug and psychotropic substance. The suggestion that Exhs.44 and 45 have been prepared at the same time and same date is denied.

10. He has admitted that he has not recorded statement of both panchas.

11. Exhs.44 and 45 collectively are dated 29th March 2012 whereas Exhs.46 and Exh.47 are dated 30th March 2012. PW2 has also admitted in the cross-examination that he had told the panchas about the seizure effected on 14th January 2012. However, He was not aware about the truthfulness about the seizure effected on 14th January 2012. It is also admitted that the copies of the said panchanama were not given to anybody. PW2 had learnt about the second address of Chand M. Shaikh from his superior Sultan. The panchanama was not read over to the panchas nor they had personally read the same. The statements of the panchas were not recorded. All the panchanamas were prepared by PW2. The house search of Chand M. Shaikh was done when the accused was in NCB custody. No lady officer or lady panch had accompanied the raiding party. The panchanama is countersigned by the wife of the accused. There is no record to show that the panchas and the parties were present while the panchanama was being written.

12. PW3 – Narayan was working as Hawaldar in NCB office. He acted as a carrier of the seized samples. He had taken the samples to CFSL Hyderabad. It is stated in the deposition that the samples were handed over to the witness on 31st January 2012 to be taken to Central Forensic Science Laboratory (CFSL), Hyderabad. The endorsement on the certificate of authority has been made on 30th January 2012. It is not known as to where the samples were kept in the intervening night of 30th January and 31st January 2012. PW3 had signed the muster on 31st January 2012 to indicate that he was on duty on that date.

13. PW4 – Shri S.G. Dole was officiating as a Intelligence Officer NCB, Mumbai. He had received the telephonic information. According to him, informant had told him that he does not wish to claim reward for passing on this secret information. According to him, he has sent print out of the said information to his immediate superior Superintendent C. Fernandis (PW1). On the basis of the said information, Mr. Fernandes had directed Davinder Singh to have surveillance at Charoti Naka and take necessary action i.e. interception of the vehicle, to search the contraband, etc. The said information note is at Exh.36. The witness was not a member of the raiding party and had not gone to the spot. According to him, after interception the said five persons were brought to NCB office. He had recorded the statements of Yashwant Patil after explaining the provisions of section 67 of the NDPS Act and apprising him of his right to remain silent.

14. According to him, Yashwant Patil had identified four persons who were in his company in the said Tavera vehicle. They were also lodged in NCB custody together. The scribe of the said statement is Mr. Chavan who works as a Sepoy. The witness has proved the contents of the statement of Yashwant Patil. The statement is at Exh.52. Witness has proved the contents of the said statement and according to the said statement on 12th January 2012 Ashok Saglani had asked Yashwant Patil to accompany him to visit a temple i.e. Durgadi Killa. That the accused Yashwant Patil had joined Ashok. On 13th January 2012 they had visited Devi Temple. In the said temple, one person had given a blue colour bag to Ashok and thereafter they had left for Bombay. Yashwant Patil had categorically stated that he was unaware of the contents of the said bag.

15. On 19th January 2012 further statement of Yashwant Patil was recorded in which he stated that he had met Ashok near his house and that he is acquainted with Ashok for last 20 years. That on 12th January 2012 Ashok had informed Yashwant Patil that there is shortage of charas in Bombay area and hence he wanted to visit Gujrat to purchase charas. According to him, Ashok had informed Yashwant Patil that in the eventuality he accompanies him, he would give him half kg contraband of charas. Delivery of charas was taken by Ashok at a Temple in Palanpur in presence of Yashwant Patil. Bhima More, Abdul Rehim Shaikh were also present at the time when the charas was handed over to Ashok for a consideration. The said charas was in blue bag and the scribe of the said statement is Mr. Chavan, Sepoy.

16. The witness had also recorded the statement of Ridwan S. Kazi on 14th January 2012 and supplementary statement on 19th January 2012. It is contended in the said statement that the deponent was working as a Driver of the said Tavera whereas his elder brother was registered owner of the said Tavera. He was requested by his elder brother to take Ashok to Gujrat and he had abided by the same. The accused had identified the co-accused. The statement dated 14th January 2012 is at Exh.56 whereas the arrest panchanama and the memorandum of arrest are at Exh.57.

17. The statement of Nikunj Ashok Saglani i.e. the son of Ashok Saglani was recorded on 29th March 2012. It is admitted by the witness that there is no mention of statement of Yashwant Patil that he had conspired with any other person to bring charas from Gujrat and yet he was found in the company of other accused persons. It is also admitted that the arrest panchanamas were not handed over to the Investigating Officer. The witness has admitted that he had typed the secret information on the office computer as he was in the office on that day. There is no record to show the time when the information was received.

18. To a question from the Court as to whether there is sufficient compliance of section 42 of NDPS Act, witness has answered that when the information is received telephonically i.e. orally, it is not necessary to send the report. The copy of information was not given to the Assistant Director/Additional Director/Zonal Director, NCB office. It is also admitted that Davindar Singh is not the immediate superior officer. It is specifically admitted by the witness that he had not given the copy of information note to the Zonal Director, no information register is maintained by the office of NCB. He was not a party to the raid conducted on 14th January 2012. He was not aware as to whether IO – Davindar Singh and other officers left for raid on 13th January 2012. He had learnt about the said incident on 14th January 2012. That prior to recording of statement under section 37 of the NDPS Act, Accused No.2 was interrogated by the officers and simultaneously, other officers were interrogating the co-accused. PW4 interrogated the Accused No.2.

19. It is pertinent to note that the signatures of three accused are found on the statement of Accused No.2 as a mark of identification. However, since accused Bhima could not sign, he had put his thumb impression. Upon perusal of records it is more than clear that there is no thumb impression on the statement of Yashwant Patil which is at Ex.52. It is also admitted that Exh.52 nowhere indicates that Accused No.2 had knowledge of the contraband lying in the vehicle. It is also admitted that there is a variance in the statements dated 14th January 2012 and 19th January 2012. That at the time of recording statement on 19th January 2012, Accused No.2 was in NCB custody. That the accused was not confronted with his previous statement. There was no verification statement of Ashok Saglani after the statement of Accused No.2 was recorded. The scribe of the statement dated 19th January 2012 is not known. Exh. 52 does not bear thumb impression of Accused No.3. It is also admitted by the witness that brother of Accused No.5 had directed him to take the vehicle for Devi Darshan to Palanpur and hence, his roll was restricted as a Driver of the vehicle hired by Accused No.1. There is no iota of conspiracy between Accused No.5 with the other accused persons. He has denied that he had obtained signature and handwriting of Nikunj Saglani by coercion.

20. Exh.52 is the statement of accused Yashwant Patil dated 14th January 2012 wherein he has contended that he sells fish near Sion Railway Station. He was arrested by Worli Police Station under the provisions of NDPS Act and was imprisoned for one year. That he was on bail. According to him, on 12th January 2012 Ashok had called upon him and had told him that they shall proceed to Palanpur for taking blessings of the Godess. It was Ashok Saglani who had come in white Tavera Car. Ashok had picked up Bhima More and Abdul R. Shaikh at Kalyan. On 13th January 2012 they went to the temple where Ashok met one man who handed over to him a blue colour bag and that Yashwant had no knowledge about the contents of the said bag. In the statement dated 19th January 2012 Ashok had allegedly informed Yashwant that there was dearth of charas in Mumbai and therefore, they should go to Gujrat Palanpur and bring charas. In the said statement for the first time, there is a reference to one Sadhu Baba who had met Ashok in the temple, taken him to a room where they met a person called Ismail and it was Ismail who had handed over a blue colour bag to Ashok and Ashok had placed the bag under the seat. It is pertinent to note that Yashwant Patil endorsed on the said statement that “I have read and understood”. There is no reference to what was read and what was understood.

21. The statement of Ridwan Kazi would show that the registered owner of the said Tavera is his elder brother. He had a tourist permit. He works as a Driver of the said car occasionally. He was called by Ashok on 12th January 2012 by informing him that they wanted to go to take the blessings of their Godess Devi. They had picked up others on the way. It is pertinent to note that the said accused Ridwan was not well versed with Marathi. Endorsement on the said statements of the accused only admits the presence of the accused and identification by the co-accused and there is nothing about the contents of the said statement. It is pertinent to note that the supplementary statement of the said accused was also recorded on 19th January 2012 to prove the receipts of the toll naka. Statement of elder brother of Ridwan was also recorded to substantiate that the said car was hired and that the Driver Ridwan was his brother.

22. The learned counsel for the accused have drawn attention of this Court to the application filed by the NCB praying for Police custody for a period of six days till 20th January 2012 wherein it was informed to the Magistrate that the seizure of 4.8 kg charas was effected at Charoti Naka at around 2.00 am on 14th January 2011 (typographical error). There is interpolation in respect of weight of the contraband. It also shows that all the accused were arrested on 14th January 2012. They were given Police custody till 20th January 2012. The said report also indicates that samples were sent to DYCC for chemical analysis on 16th January 2012. The report of the CFSL is at Exh.69.

23. PW6 - Sayyed Omar was working as Intelligence Officer on 14th January 2012. He had recorded the statement of Bhima More. According to him, Bhima had admitted that he had met Ashok Saglani in July and was well acquainted to him since he used to go to the house of Ashok to collect 1 or 2 grams of charas for self-consumption @ Rs.100/-. On 12th January 2012 he had met Ashok to obtain charas for personal consumption and at that time he was asked to accompany Ashok to Ahmedabad. For the first time, the said witness had also recorded the statement of Ashok Saglani who had disclosed about his earlier arrest that one Ismail had agreed to give him charas of Rs.20,000/- per kg. He had borrowed Rs.1 Lakh from Chand Shaikh. Witness had stated about steps taken by him in the course of search and seizure. The statement of Ashok was also recorded on 18th January 2012. It is admitted that signatures of the panchas were obtained on the panchanama after corrections were made in the panchanama. However, endorsement shows that the panchas had dictated the panchanama and PW6 was the scribe and according to witness, it is his normal practice to show that the panchanama was dictated by the panchas. Upon being confronted with Exh.87 he has admitted that statement of Bhima does not indicate that he has informed about carrying charas in the vehicle. It is also admitted that memorandum of arrest does not indicate allegations of procurement, concealment, export and attempt to sell 4.8 kgs of charas. PW 6 has also admitted that from the contents of Exh.87 it cannot be inferred that Bhima had knowledge about purchase of hashish or transport of hashish from Gujrat to Bombay. PW6 admits to have recorded the statements of Accused No.1 in his own handwriting. He also admits that he was fully aware that Accused No.1 is conversant only with Gujrathi language and that he would write the statement in the language known to him. It is admitted that it had transpired in the investigation that Chand is trafficking in charas but there is no investigation as far as Chand is concerned.

24. It is pertinent to note that all the accused were acquainted with each other, despite that the office has got accused nos.1 to 5 identified by each other. The words showing the presence of the accused was handwritten at their behest. It is also admitted that the accused have not been charged with consumption of charas although the same had transpired in the course of investigation. The witness has not ruled out the possibility that there were some more accused involved in the said trafficking of contraband and therefore, he had written unknown persons in memorandum of arrest at Exh.90. It is also admitted that the accused No.1 Ashok could not write in Marathi and that he was not in a position to read and write properly. It appears that Chand Shaikh was arrested. he was not identified by the Accused No.1.

25. PW8 - Davindar Singh was Intelligence Officer at the relevant time. He has specifically mentioned that he had informed all the five accused of his intention to carry their personal search and that he had apprised them of their right to be searched in front of Magistrate or Gazetted Officer. They had waived their right and agreed to be searched by him and therefore, he has carried out personal search of Ashok Saglani, Yashwant Patil, Bima More, Abdul R. Shaikh, Ridwan Kazi and then articles found on their person were seized. It is pertinent to note that witness has specifically stated that the entire proceedings were carried out in presence of both the panchas and that the panchanama was drawn in NCB Office. It was scribed on the office computer.

26. In the cross-examination, at the threshold, it is admitted that his posting and orders do not specify the powers given to him under NDPS Act. The admissions are as follows :-
(i) He has acted only on the basis of the direction of Mr.Fernandes at Exh.36 and there is no other direction throughout the period of investigation;
(ii) As per the information note seizure was to be made of the vehicle;
(iii) The officer who conducts the search and seizes the contraband is also entitled for reward besides the informant;
(iv) There is no record in the present case regarding the information note, the informant and the particulars of seizure;
(v) The document at Exh.37 showing search and seizure does not show the time when the said report was prepared and signed;
(vi) That there is no document to show that the statement of Abdul R. Shaikh was recorded on 14th January 2012 at 7.00 am;
(vii) That the statements of the witnesses including Abdul R. Shaikh do not state about conspiracy with other accused to bring charas from Palanpur;
(viii) That the information of arrest of Abdul was not given to his relatives or friends;
(ix) That the panchanama does not show the place where the test was conducted neither the presence of the accused at the time of test;
(x) That the test was conducted in office;
(xi) He had counted the pieces along with other officers. All this would show that test and seizure was conducted in NCB Office and not at Charoti Naka;
(xii) That sometime before the raid in the present case he had seized charas from a car and was also party to the seizure of charas from a truck. The said charas was not deposited in the Court;
(xiii) That on 14th January 2012 charas seized in the earlier case was in the same godown;
(xiv) That he has no evidence to show that the charas produced in the Court is the same which is seized in the present case. He had also been to Palanpur for investigation in the present case and had contacted Ahmedabad Zonal Unit;
(xv) That he had received the secret information on 13th January 2012 at about 4.00 pm and had reached Charoti Naka at about midnight of 14th January 2012.

27. Exh.105 panchanama dated 14th January 2012 indicates that, as the entire car had to be inspected for the recovery of the contraband and due to darkness and continuous traffic it was decided to take the car to the NCB office at Ballard Pier for detailed inspection. Accordingly, white Tavera was taken to the NCB office. On reaching Ballard Pier the officers had offered their personal search to all the five accused. All the accused were also informed of the intention of the officers to take personal search and that they have a right to be searched in presence of a Magistrate or Gazetted Officer. The accused had waived their right and therefore, they were searched by the officers. At this stage, it is relevant to mark that no intimation was given to the accused that the officer himself is a Gazetted Officer.

28. PW9 - Vilas More was running a Tea stall at Sion and had acted as Panch for house search of Yashwant Patil.

29. PW10- Yunus Sayyed has acted as a pancha for the house search of Chand M. Shaikh.

30. PW11- Pravin Kumar Barwa was coming from Dahanu on bike in the intervening night of 13th January 2012 and 14th January 2012. At about 11.30 pm on 13th January 2012 he was approached by officer of NCB at Toll Naka Charoti and was requested to act as a panch as a raid was to be effected. PW-11 was accompanied by his friend Santosh Rai. That in the course of search of vehicle they had found a blue colour cloth bag from below the back seat of the vehicle. On the basis of the information given by the accused and after opening each rectangle packet, it was noticed that each packet was containing 10 to 12 black colour chocolate like substance. That he is working as a Manager with the catering business of Navkar Caterers at Dadar. That he hails from Gujrat. It is admitted that in the panchanama at Exh.105 his occupation is written as Cattle Manager. The witness has given several evasive answers as far as the description of the vehicles is concerned. As far as the identification of the seized goods is concerned the witness has stated that he would not be able to see as to whether they have same articles. That he was seating outside godown at the time of removing contraband packets from the bag and was accompanying Santosh. This would show that the seizure was conducted in the NCB office whereas according to him the panchanama was signed by him after procedure of seizure was over.

31. PW 12 - Kiran Sable was also working as Intelligence Officer and he is the complainant in the present case. However, he had no personal knowledge. He has only drafted the complaint.

32. The charge does not indicate that the accused had procured charas at Gujrat, they possessed the same and were apprehended in the course of transportation inter-State from Gujrat to Thane. The learned counsel for the appellant no.1 submits that the contents of the charge do not in any manner reflect seizure of contraband from the vehicle and neither speaks of the place of seizure and the time of seizure. According to the learned counsel for the accused no.1 section 211 to 213 of the Cr.P.C. has not been followed in letter and spirit.

33. Upon perusal of the charge it is seen that accused was not well versed with Marathi as accused no.1 has signed on the charge in Gujrathi. The charge was read over to accused in Marathi and English and therefore, according to the learned counsel for the appellant charge was not properly explained to the accused and hence, has caused grave prejudice to the accused person.

34. The vehicle from which the contraband was seized i.e. Tavera having registration No.MH-05-AB-7540 was never produced before the Court. That the owner of the vehicle has also not been examined in the present case, although he happens to be elder brother of the accused Ridwan.

35. Exh.105 is the seizure panchanama. As per the evidence of PW 8 the vehicle was taken to the NCB Office from Charoti Naka and was inspected at the NCB Office and the seizure was also conducted in the same place. The remand report shows that the seizure was conducted at the spot. According to the learned counsel for the accused search and seizure was caused almost 50 kms away from the site of interception.

36. According to the learned counsel there is violation of the statutory provisions under section 42 of the NDPS Act. The learned counsel has placed implicit reliance upon the judgment of the Apex Court in the case of Karnail Singh Vs. State of Haryana, (2009) 3 SCC (Cri.) 887. The Hon'ble Apex Court has held that :
“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 suspicious circumstance being a clear violation of section 42 of the Act.
………………………….."

37. That in fact, according to the learned counsel there was sufficient time available for the NCB, to take a search warrant or authorisation, for the purpose of raid and seizure and the same was not abided by. That no intimation was given to the local Police about intercepting the vehicle of which they had secret information.

38. It is apparent on the face of the record that there is violation of section 50 of the NDPS Act no individual appraisal was given to the accused persons about their right to be searched by the Magistrate or Gazetted Officer. That they were collectively informed about the same. The panchas were silent on compliance of section 50. Moreover, the officer had also not apprised the accused that one of the officer who was to conduct the search is himself a Gazetted Officer. The articles found on their persons were seized and the panchanama is proved. The learned counsel has placed reliance upon the judgment of Arif Khan Vs. State of Uttarakhand, 2018 AIR (SC) 2123. Paragraph 28 of the said judgment reads as follows :-
“28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “Charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.”

39. In the case of State of Rajasthan Vs. Parmanand and Anr. (2014) 2 SCC (Cri) 563, the Hon'ble the Apex Court, has held that :
“the joint communication of the right available under section 50(1) of the NDPS Act to the accused would frustrate the very purport of section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh and the Bombay High Court in Dharmaveer Lekhram Sharma meets with our approval.”

40. The learned Public Prosecutor Ms. Kantharia has submitted that it would be necessary to take a pedantic approach since the conviction is also based upon the statements of the accused under section 67 of NDPS Act. Ms. Kantharia submitted that there is sufficient compliance of section 50.

41. The learned Prosecutor Ms. Kantharia has also placed reliance upon the judgment of the Apex Court in the case of Dehal Singh Vs. State of Himachal Pradesh, (2010) 9 SCC 85 wherein compliance of section 50 was considered. However, in the facts of that case, it was the vehicle which was searched and the charas was recovered from the vehicle and the persons of the appellants were not searched. According to her, in the case of Dehal Singh (supra), the Apex Court had observed as follows :-
"In our opinion, giving appellants the option to be searched satisfy the requirement of section 50 of the Act."

42. According to Ms.Kantharia, learned Public Prosecutor, on this ground alone, the accused deserve to be convicted.

43. That it is not the case of the accused that the raiding party had meddled with the contraband. She has placed implicit reliance upon the judgment of the Apex Court in the case of Khet Singh Vs. Union of India, (2002) SCC (Cri) 806. According to her, in the said case also Mahazar/ panchanama was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only with the office of the Customs Department that the contraband articles were in any way meddled with by the officers and hence, the conviction recorded by the High Court was not interfered with.

44. In the facts of that case, the appellants were found travelling in a car from which charas was recovered and therefore, it was held that they were in possession thereof.

45. Ms. Kantharia, Public Prosecutor submits that the conviction is also based upon the statements of the accused recorded under section 67 of the NDPS Act. Recording of the said statement has been discussed in detail above. Witness had translated section 67 of NDPS Act to the accused Yashwant Patil.

46. It is apparent that there is variance in the said statement. The first statement recorded on 14th January 2012 would show that the accused Yashwant Patil and Bhima More had no knowledge that they were accompanying Ashok Saglani for the purpose of procuring and transporting the contraband from Gujrat to Thane. In fact, it was not necessary to record the supplementary statement of the accused. Subsequent statements are self-incriminating in nature. It is doubtful as to whether the statements were recorded or they were written by the accused in their own handwriting as far as accused Ashok Saglani is concerned. There is nothing to indicate that he would even read and write Marathi. His signatures and endorsements are in Gujarathi. As far as Bhima More is concerned, he is illiterate. Moreover, police officers have stated that they have recorded the statements whereas the endorsement shows that the accused had written statements in their own handwriting. That in the subsequent statement of Accused No.1 there is a reference to the accused persons in Gujrat. There is no investigation as far as Sadhubaba or Ismail is concerned.

47. The said supplementary statements were recorded only to show that all the accused had the knowledge that they were accompanying Ashok Saglani for the purpose of procuring, transporting, selling of contraband which is falsified by their previous statement.

48. The learned counsel for the accused submits that Accused No.1 had retracted his statement vide Exh. 102. In the case of Union of India Vs. Bal Mukund and Ors. 2009(2) RCR (Cri.) page 574, the Hon'ble the Apex Court has held that “supplementary statements under section 67 were recorded in the presence of the other accused persons. The Apex Court has held thus :-
“22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a coaccused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest.”

49. It is pertinent to note that there is nothing on record to show that the statements of the accused under section 313 of the Code of Criminal Procedure were recorded in the language of the accused or that they had even understood the questions put by the Court. The same would cause prejudice to the accused. The Hon’ble the Apex Court in the case of Shaikh Maqsood Vs. State of Maharashtra reported in Criminal Appeal No.898 of 2009, has held as follows :-
“7. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
8. ………
9. ……… It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.”
In view of the above judgment, it can be safely inferred that there is non-compliance of section 313 of the Code of Criminal Procedure, 1973 and the same has caused grave prejudice to the accused.

50. Section 8(c) of N.D.P.S. Act reads as follows :
“8. Prohibition of certain operations.—No person shall—
(a) ……..
(b) ……..
(c) produce, manufacture, possess, sell, 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 this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]”

51. The most important fact remains that the Accused Nos.1 to 6 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under section 8(c) read with section 20(b)(ii)(C) read with section 23(c) of the N.D.P.S. Act 1985.

52. Section 20(b)(ii)(c) reads as follows :-
“20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—
(a) cultivates any cannabis plant; or 16(b) 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 2 [one year], or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]”

53. This aspect seems to be inherently contradictory with each other for the reason that in the facts of the case, even according to the prosecution, they had procured, possessed and were transporting the contraband interstate i.e. from Gujrat to Thane.

54. In view of the above discussion, the accused are entitled to be acquitted by extending to them the benefit of doubt. The prosecution has not followed either the statutory or mandatory provisions of the N.D.P.S. Act there is violation of section 42, section 50 and section 67 of the N.D.P.S. Act. The prosecution has also not been able to prove the search and seizure of contraband in accordance with law and therefore, it would be difficult to uphold the conviction recorded by the Special Court. Hence, the following is passed :
ORDER
(i) Appeals are allowed;
(ii) The conviction and sentence vide Judgment and Order dated 21st May 2013 passed by the learned Special Judge, N.D.P.S. Act, Thane is hereby quashed and set aside;
(iii) Appellants who are in jail are hereby set at liberty forthwith, if not required in any other matters;
(iv) Bail bond of the appellant who is on bail shall stand discharged;
(v) Fine amount, if paid, be refunded;
(v) In view of disposal of the appeals, pending civil applications do not survive and the same are disposed of.

55. The learned counsel Mr. Abhaykumar Apte was appointed to espouse the cause of the appellant in Criminal Appeal No.733 of 2014. He has assisted the Court. He is entitled to the professional fees as quantified as per the law to be paid to him within three months.

Decision : Appeals allowed.