Mr. Besistha Narayan Singh vs State Of Maharashtra (C.B.C.I.D. ...
2004 Latest Caselaw 724 Bom

JUDGMENT

D.G. Deshpande, J.

1. This appeal is filed by original accused No. 7 Mr. Besistha Narayan Singh against his conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") vide judgment and order dated 6th June 2001 passed by the Special Judge, Bombay of the offences under Sections 29 r/w Section 22 of the NDPS Act.

2. In all five appeals have been filed by different accused including this appeal. However, counsel for accused No. 7 submitted that while granting the bail to this accused, the apex Court has expedited the hearing of this appeal only. This fact was supported by the learned Spl.P.P.. Therefore, this appeal only was taken up for final hearing.

3. The entire paper book of the appeal was running into more than 1400 pages. However, Mr. Agarwal prepared a compilation of papers and documents pertaining to this accused No. 7 only and gave copy of the same to the learned Spl.P.P. and also to the Court. While challenging judgment of conviction, Mr. Agarwal, the counsel for the appellant, made only submission on the basis of those documents that the charge against the accused that was framed by the Special Judge on 28th January 1997 was:-

FIRSTLY: That during the period 28th Sept. 1992 and 18th Septe. 1993 at Gr. Mumbai, you Accd. Nos. 1 to 10 along with other wanted accused who were your Associates, in pursuance of criminal conspiracy, and in furtherance of common intention, did manufacture, transport and possess the Mandrex tablets, contraband of Narcotic Drugs and Psychotropic Substance at the time, place and date during the aforesaid period, and thereby committed offence punishable Under Section 8(c) r/w. 22, 25 and 29 of the NDPS Act 1985 and;

TENTHLY: That on 28th Sept. 1992 in Greater Bombay i.e. in the office of Asstt. Collector of Central Excise, Div. G-a, 2nd floor, Madhu Industrial Estate, P.B. Marg, Worli, Bombay 400 013 you accused No. 1 and 7 in connivance with associates accused Nos. 9 and 10 knowingly, intentionally, illegally and under the guise of official capacity of Accused No. 7 and in pursuance your agreement and conspiracy with each other did send a sample of 3 mandrex tablets to Bee Pharma Laboratories Pvt. Ltd., 4th floor, Mohatta Bhavan, Opp. Moses Road, Worli, Bombay 400 018 for the purposes of Analytical test and thereby did commit offence punishable Under Section 8(c) r/w. 22 and 29 of the NDPS Act, 1985."

4. It has to be specifically mentioned and noted here that this is the only charge against the accused and I enquired from the learned Spl. P.P. and he affirmed that the only charge of conspiracy against accused No. 7 is writing a letter Exhibit 86 to Bee Pharma Laboratories Pvt. Ltd. and sending 3 tablets for analytical test. He conceded that apart from this, there is no role of accused No. 7 in the entire case of prosecution. He also submitted that whether accused No. 7 had written any letter in his official capacity or not and what was the report of the Analytical test was also played vital role for proving the conspiracy.

5. Mr. Agarwal then contended that the charge of conspiracy relates to writing of letter Exhibit 86 by accused No. 7 to Bee Pharma Lab., along with 3 tablets for analytical test. It will have to be seen, whether this is sufficient to prove the charge of conspiracy against the accused No. 7. Admittedly, the accused was at the relevant time working as Asstt. Collector of Central Excise. He admits to have written the letter Exhibit 86 on 28th September 1992 to Bee Pharma Lab. along with 3 mandrax tablets. It is pertinent to note at this juncture that the first raid on the other accused with reference to their manufacturing activities of mandrax tablets is one year after the aforesaid letter Exhibit 86 i.e. raid is carried on 2nd September 1993 and the letter is dated 28th September 1992. The first charge against the accused is conspiracy to manufacture, transport and possess the mandrax tablets. It will be therefore necessary for the prosecution to show as to how the accused No. 7 assisted accused No. 1 and others in the manufacture of the mandrax tablets by this letter. I have already noted that even though the record of the case is running into 1400 pages, the learned Sp.P.P. fairly admitted and conceded that only evidence against the accused is the letter Exh. 86 dated 28th September 1992.

6. When there is charge of conspiracy, the essential ingredient of offence is agreement to commit offence. Conspiracy arises and offence is committed as soon as agreement is made and, the offence continued to be committed so long the combination persists. It is required to be noted here that apart from writing of aforesaid letter and sending 3 tablets to Bee Pharma Lab, this accused No. 7 has absolutely no role to play either in manufacturing, transporting, possessing and storing of mandrax tablets and, if the prosecution alleged that writing the letter was a part of conspiracy, it will have to show that how by writing such letter one year before actual raid on the premises of the other accused, accused No. 7 aided and abetted the commission of crime viz. manufacture, transport, possession, store and sale of mandrax tablets.

7. It is also necessary to mention here that there is no evidence with the prosecution about meeting of minds of accused No. 7 with other accused, or any direct or indirect evidence of entering into conspiracy for the aforesaid purposes viz. manufacture, transport, possess, store, sale of mandrax tablets. Only thing that the accused had done is, writing the letter Exhibit 86 to Bee Pharma Lab and sending 3 tablets for analytical test and, accused No. 7 is tried to be connected with the conspiracy because, according to the prosecution, it was accused No. 1 who took the said letter to Bee Pharma Lab. investigating Office, who was examined by the prosecution, has admitted in para 216 of his deposition that there is no evidence as to direct link between accused No. 7 and various narcotic contrabands seized in the present matter. It is pertinent to note that in the search of premises of accused No. 7 nothing incriminating, not a single document could be seized or recorded by the investigating agency and, even though this search was carried out without getting any court order. In order to prove that accused No. 1 had given this letter Exhibit 86, a witness came to be examined from Bee Pharma Laboratories. He was P.W.8 Mr. Nalinkumar Trivedi. He has stated that he was working in the Pharmaceutical Public Testing Laboratory i.e. Bee Pharma Lab Pvt. Ltd. approved by the Government at Worli. His main job is to carry out the analysis of the pharmaceutical companies works and give the report of analysis. He carries out analysis of pharmaceutical drugs, cosmetics and they receive samples from the parties on their individual letters. He also works for Government Agencies. In 1992 he has received one sample from Central Excise Department with 3 tablets for the purposes of analysis. The person who gave the letter and 3 tablets was identified by him as accused No. 1. The letter was signed by B.N. Singh and the designations mentioned in the letter was Asstt. Collector Customs, Central Excise. He is accused No. 7. Then P.W.8 asked accused No. 1 as to what type of analysis work was required and, accused No. 1 alleged to have told him that he required percentage of methaquinone. P.W.8 then told accused No. 1 that on 3 tablets it was not possible to carry out percentage test and that they required more samples. Then accused No. 1 replied that he would ask the authority person and if tablets are available, he will bring the same.

8. However, it is pertinent to note that nowhere in the future any more tablets were supplied to Bee Pharma Lab or P.W.8 for the purposes of analysis. It is also most pertinent to note that even though Bee Pharma Lab carried out certain test on those 3 tablets, nobody came forward to Bee Pharma Lab or P.W.8 either from and on behalf of accused No. 7 or for and on behalf of any of the accused (available or absconding if any) to collect the report of analysis test.

9. The report of analysis is a part of Exhibit 54. It is mentioned there that "for repetition required more tablets. Informed the party. Sample not sent by party. Hence analysis not carried out." This witness P.W.8 has further stated that accused No. 1 came on the next date but did not bring more tablets and told him that more tablets are not available. P.W.8 again told accused No. 1 that since more tablets are not available he cannot do percentage purity test. But accused No. 1 told him to do only identification test and, therefore, test by method of analysis was carried out. But report of analysis was not collected and, since nobody came to collect the report after 20 days, they wrote a letter on the original report the findings of the analysis and, thereafter in October, 1993 officer of N/Cell C.B.C.I.D. enquired with him about the tablets and the documents and, they were given to them by P.W.8

10. P.W.36 in para 154 of his cross examination admitted that on 23.2.96 he was dismissed from police department by the order of commissioner of Police and the ground of dismissal amongst the others was malafide investigation in the present C.R. No. 38/93 i.e. concerning accused No. 7. He also filed xerox true copy of the said order under the signature of the Commissioner of Police. This witness further admitted that against the said order of dismissal he went before MAT vide in his favour. But the State Government approached this Court against the said order in Writ petition No. 3385/97 and the same was pending with the stay order to the decision of MAT. Mr. Agarwal therefore contended that in view of these admissions affecting the character and integrity of the witness P.W. 36 no reliance should be placed upon his evidence so far as it relates to and against accused No. 7. I find strong force in this contention.

11. The question is, whether this evidence is sufficient to hold the accused No. 7 guilty of conspiracy. Learned Spl.P.P. tried to urge that if this letter Exhibit 86 was written by accused No. 7 in his official capacity, he should have maintained the record and, if he has not done in his official capacity, then strong inference can be drawn against accused No. 7.

12. I am not at all in agreement with this submission. The prosecution must prove the case of conspiracy against accused No. 7 on its own strength and not on the basis of defence raised by the accused. Whether accused No. 7 wrote letter Exhibit 86 in his official capacity or privately is of no consequence. The question is, what the prosecution wants to prove by producing the letter and by proving that accused wrote this letter and sent 3 tablets for analysis.

13. If the conspiracy was for manufacturing, transporting, possessing or storing of mandrax tablets, then there should have been evidence of the prosecution to show that by writing this letter accused No. 7 assisted directly or indirectly the other accused in the process of manufacturing. In fact, it is a proved fact and admitted fact that only 3 tablets were sent. P.W.8 has categorically admitted that 3 tablets were not at all sufficient to carry out analytical test and secondly, nobody came forward to give more tablets and then to collect the report. Therefore, firstly, there was no analysis to determine the percentage of methaquinone because the tablets were not sufficient and secondly, nobody cared to enquire about the result of test or to collect the report. Therefore, how this accused could have assisted, helped, abetted in the commission of crime of manufacturing of mandrax tablets is a question not at all answered by the prosecution.

14. It is also the matter of record that Been Pharma Lab was not doing work only for the government. Bee Pharma Lab was doing work of analysis for private companies and privately also. Anybody could have got the sample test analysis by paying official charges of Bee Pharma Lab. Therefore, it is unanswered by the prosecution as to why accused No. 1 sought help of accused No. 7 in getting 3 tablets analysis. Anyone from the accused or any person interested in legal or illegal activities of manufacturing mandrax tablets could have directly but secretrely approached Bee Pharma Lab for the purpose of analysis.

15. Thirdly, the charge of conspiracy is very serious one. There cannot be direct evidence of conspiracy and anyone can be roped in the charge of conspiracy. But the proving conspiracy, the prosecution is under obligation to bring the material on record which is enough and sufficiently enough to connect the accused with the conspiracy and main crime.

16. As stated above, the leaned Spl.PP fairly conceded that apart from letter Exhibit 86, there is absolutely no piece of evidence with the prosecution to connect the accused with the crime for which other accused were charged and, in this background of the matter, it has to be held that the evidence brought on record and as discussed above is totally and completely insufficient to prove the charge of conspiracy against the accused No. 7.

17. It is also a strong circumstance what this letter exhibit 86 was written in September 1992 i.e. on 28th September 1992 and admittedly, the first raid carried out by the investigating agency was after one year. There is absolutely no link between writing of letter and carrying out raid. Time span between two is too long to draw any inference against accuse No. 7. Mr. Agarwal from the evidence of P.W.8 pointed out that accused No. 1 when he produced the said letter Exhibit 86 told P.W.8 that he required percentage of methaquinone. Mr. Agarwal contended that Methaquinone is a chemical used in Vitamin K and, there was no prayer or request by accused No. 1 to carry out test for methaquinone which a ingredient of mandrax tablet. P.W.8 in his further cross examination has admitted that when his statement was recorded by P.1 Khedkar he told that he was asked for the test of methaquinone. P.W.8 has identified accused No. 1 in Court and he has admitted that he saw accused No. 1 only twice i.e. on the date of which exhibit 86 was given by accused No. 1 and on the next day and, thereafter he saw accused No. 1 when he was called in N/Cell office for identification parade which took place on 1.11.1993. It is very difficult to believe that a man working in pharmaceutical laboratory dealing with number of persons daily would remember accused No. 1 after one year and one month. But that apart, even the evidence, that is brought on record and discussed above, is accepted as it is, it does not prove conspiracy in any manner whatsoever i.e. conspiracy of accused No. 7 with accused No. 1 in particular and others in manufacturing, transporting, possessing of mandrax tablets.

18. Learned Spl.PP contended that if accused No. 7 had sent the letter Exhibit 86 in his official capacity, he should have maintained eh records and, not maintaining records is indicative of his guilt and connection with other accused. It is very difficult to accept this contention because mere writing of letter with 3 tablets and without doing anything more in the entire process, cannot be considered as an act done by accused No. 7 in pursuance of the conspiracy.

19. As against this witness Aziz D. Petkar (PW 23) has admitted in para 7 of his cross examination that when the officer is cultivating 'the source' and verifies the 'source' sample, it is the discretion of the officers to open a file or not. It is also the discretion of the officers to give outward number to a confidential letter. By analytical test, means finding out the composition of the tablet. My attention was drawn by Mr. Agarwal to the statement of accused No. 7 recorded by Spl. Judge under Section 313 of the Cr.P.C. Those three questions are question No. 9, 26 and 27 and from those questions it is absolutely clear that apart from writing of this letter Exhibit 86 there is no other material with the prosecution against the accused No. 7.

20. Apart from the evidence of identification of accused No. 1 given by P.W.8, the prosecution also relied upon confessional statement of accused No. 1 about taking of letter by him from accused No. 7 to Bee Pharma Lab. Mr. Agarwal contended that the confessional statement of accused No. 1 is of no use against accused No. 7 without any corroboration and since the evidence of identification by P.W.8 after one year is doubtful, accused No. 7 should be acquitted of the charges.

21. In the result, the conviction of the accused No. 7 is liable to be set aside and he is entitled for acquittal. Hence, the following order:-

ORDER

1. The appeal is allowed. The conviction and sentence of the appellant/accused No. 7 under Section 29 r/w Section 22 of the N.D.P.S. Act is set aside. He is acquitted of all the charges levelled against him.

2. He is on bail. His bail bond stands cancelled.