Bombay High Court
Praveen Kumar vs Union Of India And Anr on 13 September, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 7 OF 2019
WITH
CRIMINAL APPLICATION NO.282 OF 2019
Alishan Chaitanya Sharma @ ]
Alishan Asif Khan ]
R/o Flat No.305, 3rd Floor, ]
God's Gift Tower, Yari Road, ]
Versova, Andheri (W), ]
Mumbai 400 061 ] .. Appellant
VERSUS
1. Union of India ]
(Directorate of Revenue Intelligence ]
F.No.DRI/MZU/C/INV-14/2013-14) ]
2. State of Maharashtra ] .. Respondents
WITH
CRIMINAL APPEAL NO.28 OF 2019
Kiran Vijay Jangale ]
Resident of Room No.1, Lukiya ]
Nagar Chawl, Lokmaniya Tilak ]
Nagar, Boaraspada Road, Poisar, ]
Kandiwali (W), Mumbai 400067 ] .. Appellant
VERSUS
1. Union of India ]
(Directorate of Revenue Intelligence ]
F.No.DRI/MZU/C/INV-14/2013-14) ]
M.M.Salgaonkar
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2. State of Maharashtra ] .. Respondents
WITH
CRIMINAL APPEAL NO.1572 OF 2018
WITH
CRIMINAL APPLICATION NO.186 OF 2019
Praveen Kumar ]
R/o 103/48, Adarsh Colony, ]
Guru Nanak Road, Subhash Nagar, ]
Dehradun, Uttarakhand ] .. Appellant
VERSUS
1. Union of India ]
(At the instance of Intelligence ]
Officer, Directorate of Revenue ]
Intelligence, UTI House, Churchgate, ]
Mumbai 400 020 ]
2. State of Maharashtra ] .. Respondents
Mr.Ayaz Khan for the Appellant in Appeal No.7 of 2019.
Mr.Dilip Mishra for the Appellant in Appeal No.28 of 2019.
Mr.Anil Lalla for the Appellant in Appeal No.1572 of 2018.
Ms.Ameeta Kuttikrishnan for Respondent No.1-Union of India.
CORAM: BHARATI DANGRE, J.
RESERVED ON : 21st JUNE, 2021
PRONOUNCED ON : 13th SEPTEMBER, 2021
M.M.Salgaonkar
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JUDGMENT :-
1. The three Appeals pose challenge to the judgment
delivered by the Special Court for Greater Mumbai under the
Narcotic Drugs & Psychotropic Substances Act, 1985 (for
short, "NDPS Act") in NDPS Special Case No.152 of 2014. All
the three Appellants were tried jointly and came to be
convicted and sentenced accordingly.
DETAILS OF THE APPEALS
Criminal Appeal No.7 of 2019 is instituted by Accused
No.1-Alishan Chaitanya Sharma, Criminal Appeal No.28 of
2019 is filed by Accused No.2-Kiran Jangale whereas Criminal
Appeal No.1572 of 2018 is filed by Accused No.3-Praveen
Kumar.
Accused No.1 is convicted for the offence punishable
under Section 8 (c) read with Section 22(c) of the NDPS Act
and sentenced to suffer R.I. for 10 years and to pay fine of
Rs.1,00,000/-, in default to suffer R.I. for 1 year. All the three
Accused are convicted for the offence punishable under
Section 28 read with Section 8(c) and Section 22(c), Section
29(1) read with Section 8 (c) and Section 22(c) of the Act and
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are sentenced to suffer R.I. for 10 years and to pay fine of
Rs.1,00,000/-, in default to suffer R.I. for 1 year, on each count.
All the Accused stand convicted under Section 30 read
with Section 27A and 2(viiia)(iii) of the Act and sentenced to
suffer R.I. for 5 years and to pay fine of Rs.50,000/-, in default
to suffer R.I. for six months.
All the accused persons are in custody since the date of
their arrest; Accused Nos.1 and 2 being arrested on
15/02/2014 whereas Accused No.3 is arrested on 17/02/2014.
2. The Appeals came to be admitted by this Court on
15/12/2018.
By order dated 23/10/2020, on receipt of R & P, the
Appeals were directed to be listed for final hearing on
27/11/2020 and from time to time, they were listed for final
hearing. In view of the circulation sought for final hearing, the
Appeals were fixed for hearing by consent of parties and came
to be heard together and are disposed of by this common
judgment.
3. I heard learned counsel Mr.Ayaz Khan for the Appellant
in Appeal No.7 of 2019, learned counsel Mr.Dilip Mishra for the
M.M.Salgaonkar
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Appellant in Appeal No.28 of 2019 and learned counsel Mr.Anil
Lalla for the Appellant in Appeal No.1572 of 2018. The Union
of India is represented by Ms.Ameeta Kuttikrishnan.
CASE OF THE PROSECUTION
4. Before appreciation of the rival submissions, a brief
background of the prosecution case is necessary.
A) PW 1 received specific intelligence on 10/02/2014 at
around 7 to 7.15 p.m. that a courier parcel has been booked
with International City Runners India Pvt. Ltd. situated at 2,
Grace Chambers, Andheri Kurla Road, Amrut Nagar, Chakala,
Andheri (East), Mumbai -93 indicating Ketamine
Hydrochloride, a psychotropic substance covered under the
NDPS Act, is booked for being dispatched to London, by
concealing the same in the consignment containing foodstuff.
The said intelligence was reduced into writing at 7.30 p.m. and
placed before superior officers, who directed on working out
the said intelligence.
B) Based on said intelligence, a team of officers under the
supervision of PW 4 -Hatangadi rushed to the said premises,
called panchas and inquired with the Manager, Mr.Nixon
D'Souza, who was present, about a courier parcel booked for
London containing foodstuffs/eatables. He led them to a
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consignment enroute to London vide Airway Bill
No.1234581054.
One carton was produced, which contained a pouch of
documents, affixed to one of its sides. Perusal of the
documents revealed that it was the aforesaid Airway Bill,
where name of the shipper refected as R.C.Patel, 503, Sita
Sadan Tower, Malad Link Road, Malad, Mumbai 64 and the
receiver was shown as V. Rathore, 50, Aspern Grove, Belsize
Park, London NW32BX. The other document was the list of
item and the details of the consignor and consignee.
On opening of the carton, it was found to contain some
foodstuffs, clothes and beauty products. On examination of 10
sealed boxes of beauty products, each of them, contained a
silver coloured sealed pouch. On opening the said, it was found
to be containing white colour crystalline substance and on
testing, it gave positive result for presence of Ketamine
Hydrochloride.
The contents of the said pouches were emptied in a Blue
colour plastic bag and the said silver colour pouches were re-
paced in the same box. The same was weighed on the weighing
scale of the courier company. The weight of the white
crystalline substance was ascertained to be 5 kgs. and the
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same was seized under the provisions of the NDPS Act.
Three samples of 15 gms. each were drawn. The said
samples were put in self locking plastic pouches which were
put in separate envelopes bearing the case details. The said
envelopes were sealed with DRI Seal No.18 and were marked
as original, duplicate and triplicate. The panchas, the DRI
officers and Nixon D'Souza put their signatures with date on
the said envelope.
10 plastic boxes alongwith clothes were seized and put in
a cardboard carton. It was packed and sealed. The carton was
packed using self adhesive tapes, tied with thread (sutli) and
sealed with DRI seal No.18. A tag bearing the case details,
signature of panchas, DRI officer and Nixon D'Souza was
affixed.
All the perishable food articles were seized and packed in
a separate carton and sealed. The carton was packed using self
adhesive tapes, tied with thread (sutli) and sealed with DRI
seal No.18. A tag bearing the case details, dates signature of
panchas, DRI officer and Nixon D'Souza was affixed.
The panchnama commenced at 23.00 hrs. and concluded
at 5 a.m. on 11/02/2014.
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C) PW15 received a phone call on 13/02/2014 at 9.30 a.m.
that another courier has been booked with International City
Runners India Pvt. Ltd. indicating, Methaqualone, a
psychotropic substance being consigned to London by
concealing it in a consignment containing foodstuff.
The said intelligence was reduced into writing and placed
before superior officers, whereupon directions were given for
working out the said intelligence.
Based on said intelligence, a team of officers under the
supervision of PW 4-Hattangadi rushed to the said premises on
13/02/2014, called the same set of panchas and inquired with
Nixon D'Souza, who was present there, about a courier parcel
booked for London containing foodstuff/eatables. Nixon
D'Souza informed about a consignment in their operational
area, being booked for London, but the Airway Bill was not
ready. One staff member brought one cardboard carton before
the officers and informed that it was the same courier parcel.
The said cardboard carton was heavily strapped with
brown colour self adhesive tape. Mr.Nixon D'Souza also
handed over a handwritten inventory of the goods contained
in the carton and informed that it was given by the person who
had come to book the parcel. The reverse side of the paper
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scribed name of the consignor as Mohan Madan Sethy, 403,
404 Darya Ganj Apartment, Ansari Road, Versova, Andheri
(W), Mumbai 53 and the receiver was Mrs.S.Panchal, 23,
Alicia Gardens, Kenton Harrow, London HA38JB.
On opening the carton, it was found to contain foodstuffs
and clothes. On opening 10 sealed MTR ready to eat food
packets, it was found to be containing white colour crystalline
substance and on testing, it gave positive result for
Methaqualone.
The contents of the said 10 MTR packet were emptied in
a blue colour plastic bag and the said MTR packets were re-
packed in the same carton from which it was removed. The
weight of the white crystalline substance was ascertained to be
4.996 kgs. The same was seized under the provisions of the
NDPS Act.
Three samples of 15 gms. each were drawn. The said
samples were put in self locking plastic pouches which were
put in self locking plastic pouches which were put in 3 separate
envelopes bearing the case details. The said envelopes were
sealed with DRI Seal No.18 and were marked as original,
duplicate and triplicate. The panchas, DRI officers and Nixon
D'Souza put their signatures with date on the said envelopes.
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The blue colour plastic bag containing 4.951 Kgs. of
contraband was put in a separate carton. The carton was
packed using self adhesive tapes, tied with thread (sutli) and
sealed with DRI seal No.18. A tag bearing the case details,
dated signatures of panchas, DRI officer and Nixon D'Souza
was affixed.
D) On 14/02/2014 at about 13.00 hrs, a batch of DRI officers
and 2 panchas went to the house of Kiran Jangale (Accused
No.2) and informed him that they wanted to search his room
in connection with the seizure of contraband in two courier
parcels. He admitted to booking the 2 parcels and also
admitted that there were 3 more parcels containing food stuff
to be booked at the same courier company as per directions of
his employer, Alishan Sharma (Accused No.1).
Kiran Jangale retrieved 3 parcels from the loft of his
room. Search of his premises resulted in recovery of 1 digital
kitchen scale, 1 digital bathroom scale, 1 hot seal plastic bag
sealing machine and also 129 empty plastic pouches. For the
purpose of examining the parcels, each carton was marked as
'A', 'B' and 'C'.
On opening the cardboard carton marked 'A', it was found
containing some foodstuffs and clothes. The MTR packets
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marked as MTR Rawa Idli, on being opened, led to white
crystalline powder, which gave positive result for presence of
Methaqualone. The said packet was marked as A1 and it was
found to be weighing 500 gms. In a similar manner, other six
packets of MTR were opened, which contained Methaqualone
and they came to be marked as A2 to A7. The total contents of
the said packets was 3500 gms. from cardboard carton
marked as 'B', 7 packets of MTR Rawa Idli and 3 packets of
MTR Rawa Dosa were found containing Methaqualone. The
packets were marked as B1 to B10 and the total quantity of the
contraband was weighed to be 5 Kgs.
On opening of the cardboard carton marked as 'C', which
contained some foodstuffs, beauty products and clothes, no
contraband was recovered. On opening the packet of Swaroop
Herbal Beauty Product, it was found to contain off-white
crystalline powder, which was tested by the field testing kits as
Methaqualone. The 8 jars of beauty product were marked as
C1 to C8, which contained 4 Kgs. off-white crystalline powder,
being Methaqualone. Three samples of 15 gms. were drawn
from each carton and put in polythene bags, which were sealed
and then kept in separate envelopes. The envelopes came to
be seized and marked. The panchas, including the officer and
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Kiran Jangale put their signatures on the envelope. Other
articles in form digital kitchen scale, digital bathroom scale,
one hot seal plastic bag sealing machine and 10 empty pouches
were also seized alongwith empty packets of MTR Rava Idli
and MTR Rava Dosa, by preparing a panchnama, which was
signed by the panchas, DRI Officer and Accused No.2-Kiran
Jangale. The panchnama concluded at 21.30 hrs.
E) On 14/02/2014 at 13.30 hrs., a batch of DRI officers
visited the house of Alishan (Accused No.1) after arranging
the panchas, where he was present and on search of the said
premises, the officers recovered bank statement of Alishan
and maintenance bill alongwith Indian currency worth
Rs.33,50,000/-. The said document alongwith money was
seized under a panchnama, being the sale proceeds of Narcotic
Drugs. The panchnama concluded at 17.00 hrs.
F) Intelligence regarding mobile number 9897640490
revealed that it was registered in the name of Pankaj Kumar,
r/o Brahma Singh, 95, Shukratal Nakur, UP 247342. This
information was forwarded to Deputy Commissioner of Central
Excise and Customs at Shaharanpur to make further inquiries.
Accordingly a team headed for house of Pankaj Kumar at
Saharanpur, UP, and made inquiry and executed panchnama
M.M.Salgaonkar
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dated 14/02/2014. During the course of inquiry, it was
revealed that mobile number 9897640490 was being used by
his elder brother Praveen Kumar (Accused No.3), who is
resident of 103/48, Adarsh Colony, Gurunanak Road, Subhash
Nagar, Dehradun.
G) Vide panchnama dated 15/02/2014, house premises of
one Vikram Athawale was searched. The mother of Vikram
Athawale was found to be present there and certain writing
pads were seized during the course of panchnama.
H) Vide letter dated 18.08.2014, Addl. Director H.R.Garg
wrote to the Commissioner of Customs for disposal of the drugs
after preserving the attached identification tags, seals etc.
On 12/08/2014 vide a panchnama under Section 52A,
the proceedings were carried out, where samples from all the
three abovementioned seizures were drawn at the Customs
Basement Warehouse at Ballard Pier (Ex.139). The learned
Magistrate also issued a certificate to the effect of correctness
of the inventory and the list of samples drawn. The abovesaid
documents are marked at Ex.139.
I) After completion of investigation by PW 15,
Satyaprakash (Intelligence Officer, DRI), the complaint was
filed in August 2014.
M.M.Salgaonkar
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CHARGE AGAINST ACCUSED
5. On investigation being completed and charge-sheet being
filed, the Accused persons are charged by the Special Court on
06/01/2016.
The Accused are charged for conspiring and abetting the
commission of offence under the NDPS Act from December
2013 to 14/02/2014 by acquiring, possessing, storing and
transporting psychotropic substance such as Ketamine and
Methamphatamine and thereby committing an offence
punishable under Section 29 read with Sections 22 and 8(c) of
the NDPS Act.
The Accused are charged under Section 22 read with
Sections 8(c) and Section 29 of the NDPS Act, for the
conspiracy being committed on or about 10/02/2014 and
11/02/2014 in acquiring, possessing, storing and transporting
5.00 Kgs. of Ketamine HCL, recovered from packets with
marking as foodstuffs and beauty products and found in an
export consignment of one carton to London at the premises of
International City Runners India Private Limited.
Charge is also framed against the accused persons under
Sections 8(c) and 29 of the NDPS Act, for conspiracy by
alleging that on or about 13/02/2014 at Mumbai, they
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acquired, possessed, stored, transported 4.996 kg. of
Methamphetamine, recovered from packets with marking as
foodstuff. They are also charged for conspiracy for attempting
to export the seized 5.00 Kgs. of Ketamine HCL and 4,996 Kgs.
of Methamphetamine.
All the three Accused are charged for acquiring,
possessing, storing and transporting 12.50 Kgs. of
psychotropic substance, which was recovered from packets
with marking as foodstuff found in three ready to export
consignment in form of cartons, headed to London, at the
residential premises of Accused No.2-Kiran Jangale and
thereby committing an offence punishable under Section 22
read with Sections 8(c) and 29 of the NDPS Act. Charge is
also framed under Section 30 read with Sections 8(c), 22 and
29 of the NDPS Act in view of the preparation to export 12.500
kgs. of psychotropic substance, recovered from the packets of
foodstuff.
Accused No.2 is also charged for committing an offence
punishable under Section 25 of the NDPS Act for knowingly
allowing the use of his residential premises to commit an
offence under the NDPS Act.
M.M.Salgaonkar
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6. Since all the three accused persons pleaded not guilty
and preferred to be tried, they were subjected to trial.
GIST OF WITNESSES EXAMINED DURING THE TRIAL
7. The prosecution laid its case before the Special Court
through 18 witnesses. The witnesses of the prosecution can be
classified under different heads to the following effect :-
INVESTIGATING OFFICERS
PW 1 G. Shiv Shankar
PW 2 Mubeen Ahmed Juvale
PW 3 S. Venkata Subramanium
PW 4 Saikrishna Bhadrinath Hatangadi
PW 6 Arjun Raghvendra M.
PW 8 Yogita Bhangare
PW 15 Mr.Satyaprakash
PW 16 Mr.Vitthalbhai Ranchodbhai Parmar
PANCH WITNESSES
PW 5 Mohammed Shaikh Nadeem
PW 14 Ms.Neha Sanjay Gejge
PW 17 Ms.Bharti Kiran Nakum
OFFICE BEARERS OR DIRECTORS OF INTERNATIONAL CITY
RUNNERS INDIA PRIVATE LIMITED
PW 7 Nixon D'Souza
PW 9 Stephanie Miskquitta
M.M.Salgaonkar
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CHEMICAL ANALYSERS
PW 11 Satyakumar Shrinarayanlal Gupta
PW 18 Mr.Krishanmurari Varshney
WITNESSES TO ESTABLISH CONNECTION OF ACCUSED
PW 10 Smita Shrikant Athavale
PW 12 Vicky Ramesh Sharma
PW 13 Amin Aman Shaikh
8. The defence examined two witnesses, being DW 1 -
Vijayu Jangale (Accused No.2's father) and DW 2 - Minal
Sharma (Accused No.1's mother).
SUBMISSIONS ADVANCED
9. The respective counsel advanced their submissions, in
support of the respective appellants and the submissions can
be encapsulated to the following effect :
To begin with, learned counsel Mr.Ayaz Khan, appearing
for the Appellant-Alishan (Accused No.1), would invite my
attention to a most important fact to the effect that Accused
No.2 is acquitted of the charge under Section 25 framed
against him for using the residential premises for commission
of offence, but DRI has not preferred any Appeal. The falsity in
the case of the prosecution is alleged since Accused No.1 is
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convicted for possession of the contraband though he is not
found with the contraband and though there is no charge
framed against him under Section 27-A, he is convicted under
Section 27-A and sentenced. Section 27-A pertains to
financing and submission of the learned counsel is that he has
set up a defence by examining DW 2 qua the recovery of
amount of Rs.33,00,000/- from his house. By pointing out the
inconsistency in the timings in recording of his statement
under Section 67 of the NDPS Act, learned counsel would
submit that the recording of the said statement is not possible,
since at the same time, the panchnama was being recorded in
the fat of Accused No.2-Kiran Jangale. Simultaneous
recording of the two is not possible, is the submission of
Mr.Khan. Apart from this, learned counsel is extremely
critical of the manner in which the prosecution case has been
conducted.
10. According to the learned counsel Mr.Khan, the seizure of
amount of Rs.33,50,000/- from the house of Accused No.1 vide
Ex.24 on the pretext that it is received through hawala from
one Vikram Athavale is also not proved. It is submitted that to
substantiate the said allegations, prosecution has placed
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reliance on statement of Accused No.1-Alishan and one
Vitthalbhai Patel, who is alleged to have been involved in the
hawala transaction and the statement is exhibited as Ex.03,
but Vitthalbhai is not examined as a witness. No details are
given as to how much and on what date, the money was
received. On the contrary, Accused No.1 has examined the
defence witness to substantiate his case that Rs.24,50,000/-
was received from Nihal Khal in family settlement and
Rs.8,000/- has been received from Subhash Singh and rest of
the money belonging to his family, was kept together. By
stepping into the witness box, DW 2 has proved the same
through two documents being Exs.178 and 180, the
genuineness of which is not challenged by the prosecution.
The statement of the Accused recorded under Section 67
of the NDPS Act, in the wake of the latest position of law laid
down in the case of Tofan Singh Vs. The State of Tamil Nadu 1,
has lost its efficacy and need to be ignored is the submission of
the learned counsel. He would urge that there is no material
other than the said statement, which would sustain his
conviction.
11. Learned counsel Mr.Lalla allege violation of Section 42 of
the NDPS Act by submitting that the prosecution rely on one
1 (2021) 4 SCC 1
M.M.Salgaonkar
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document being Ex.19 to show the compliance, which is
exhibited through PW 1. He submit that the timing on the said
document is recorded as 07.30 p.m. on 10/02/2014 and PW 1
has deposed that to collect the information, he did not go out of
the office, but the received the same on phone. According to
the learned counsel Mr.Lalla, if the information was received
at 07.30 p.m., the officer of DRI could not have been at the
office of Mr.Nixon (PW 7) at 07.30 p.m., taking into account the
distance between the DRI office, which is located at Marine
Lines and the raid being conducted at Chakala, Andheri. As
far as Ex.19 is concerned, his submission is that since PW 1
has admitted that he taken the information on rough papers,
which he has not retained and no entry is taken in the Register
maintained as DRI I and Ex.19, which is typed on computer
being not saved, the information does not fall within the ambit
of Section 41(2) and further PW 4 not being a Gazetted Officer,
the alleged seizure in an enclosed place, post sunset, without
authorization or search warrant cannot be sustained.
Further, submission is to the effect that seizure memo
dated 10-11/2/2014 (Ex.39) is not believable and is proved in
accordance with law. In support of the said submissions,
Mr.Lalla rely upon the depositions of PW 1, PW 4, PW 5, PW 7
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and PW 9 and submit that the panchnama (Ex.39) is prepared
and signed by PW 4 and it commenced at 23.00 hrs. on
10/02/2014 and concluded at 05.00 hrs. on 11/02/2014. He
submit that PW 1 does not depose anything about the seizure,
but PW 5 has deposed that the names of the consignor and
consignee were mentioned on the courier packets. PW 7,
however, has deposed that Hatangadi came to the office at
about 07.30 p.m., accompanied by one more officer and within
their presence, the concerned box was located, meaning
thereby the box was located even before the raid, which
commenced at 23.00 hrs. PW 7 has deposed that he was not
assisting Hatangadi (PW 4) in locating the box and if there is
any document to show that he had assisted him, the document
is incorrect. The panchnama (Ex.39), according to learned
counsel Mr.Lalla, refect that Mr.Nixon (PW 7) verified on the
computer about the consignment and at his instruction, the
staff member produced the courier parcels. The learned
counsel strenuously urge that the prosecution witnesses
contradict each other, as PW 9 in her cross-examination admit
that when she came to the office on the next date i.e. on
11/02/2014 at around 9.30 to 10.00 a.m., the consignment was
shown to her in the cabin of Mr.Nixon and the crystal powder
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packet was shown to her. According to learned counsel
Mr.Lalla, this inconsistency in the version of the prosecution
witnesses make the seizure vide Ex.39 doubtful. According to
him, the evidence of PW 9 is fatal and amount to complete
demolition of the case of the prosecution. Apart from this, the
submission advanced is that the bulk contraband is not
proved, in accordance with law. The seizure dated 13/02/2014
vide Ex.44 is also argued to be not believable and proved in
accordance with law. Same argument is advanced qua the
seizure dated 14/02/2014 vide Ex.129 as Kiran Jangale was
present in the DRI office, when the statement of Accused No.1-
Alishan was being recorded and he could not have presented
himself at the place where the search and seizure was
conducted. This inconsistency in the prosecution case goes to
the root of the matter, according to Mr.Lalla, and in absence of
the seizure being proved, the case of the prosecution as
alleged, is based on unsteady grounds.
12. Learned counsel Mr.Mishra appearing for Accused No.2-
Kiran Jangale also tow the line of argument advanced by the
respective counsel as regards the seizures carried out on two
dates vide two distinct panchnamas. The faw in the seizure
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and as to the timings, belie the prosecution case, is also argued
by Mr. Mishra. He submit that the seizure at his house on
14/02/2014 vide panchnama (Ex.129) is a sham, since at the
time when his house was being searched, Kiran is shown to be
present in the DRI office when Accused No.1's statement was
being recorded. This fallacy makes the prosecution case
extremely doubtful is his submission. His further submission
revolve around the illegality committed while recording the
statement under Section 67 of the NDPS Act and according to
Mr.Mishra, both the Accused were brought to the DRI office.
Their statements were allegedly recorded and they were
placed under arrest. According to the learned counsel, it can
be safely submitted that the statements of the Accused are
recorded by keeping them in custody and delaying their arrest
and, therefore, the said statements cannot be admitted in
terms of law.
In nut shell, the respective counsel have assailed the
impugned judgment as perverse and unsustainable, as not
based on appropriate appreciation of the circumstances placed
before the Court and since there is a gross failure by the
Special Judge to scrutinize the evidence on record, resulting
into misappreciation of material facts transpiring in evidence
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and it has resulted into serious miscarriage of justice. The
Appellants, therefore, seek their acquittal by overturning the
impugned judgment.
13. Ms.Ameeta Kuttikrishnan appeared for Union of India
and she do not dispute the position of law holding the field
about admissibility of the statement recorded under Section
67 of the NDPS Act, in light of the decision of the Hon'ble Apex
Court in case of Tofan Singh (supra). She, however, contest
the stand of the Appellants that the search and seizure itself is
unsustainable in light of the glaring discrepancies. According
to her, the discrepancies are trivial in nature, and do not in
any way, shake the credibility of the prosecution case. She
would urge that the charges faced by the Appellants are
serious and since, the prosecution has succeeded in
establishing the same, the impugned judgment, which convict
them, do not call for any interference.
CONSIDERATION OF THE PROSECUTION CASE
A] SEARCH AND SEIZURE OF CONTRABAND IN FIRST
RAID
14. The initiation of the prosecution case is the information
received by PW 1, the Intelligence Officer working with DRI.
On 10/02/2014, at around 7.00 to 7.15 p.m., he received secret
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information that a courier parcel has been booked with a
courier company by name International City Runners India
Pvt. Ltd. (hereinafter referred to as "ICR India Pvt Ltd."),
containing Ketamine HCL, which is destined to London. As per
PW 1, he prepared the intelligence note and put it before his
Senior Intelligence Officer Mr.S.B.Hatangadi (PW 4). The said
intelligence note is exhibited through him as Ex.19. The
superior officer (PW 4) endorsed the same by putting his
signature and recording as under :-
"Let us form a team and go to the said courier office and
examine the parcel meant for London as "food stuff".
The time of the endorsement is refected as 07.50 p.m.. PW 1
has deposed that he was part of the team, which proceeded to
the courier office and he is also part of the panchnama.
Though the witness admit that the information was
received on phone, he admit that no CDR is produced.
Handwritten notes were prepared by PW 1 on the rough
sheets, but what was handed over to his superior was Ex.19.
The information received is thus reduced into writing by PW 1
and placed before the superior officer (PW 4), who is a
Gazetted Officer, thereby ensuring compliance of Section 42 of
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the NDPS Act. The argument advanced that there is no
compliance of Section 42(2), cannot hold good, since the raid
is conducted on authorization of PW 4 and he himself
participated in the raid conducted on both the dates, being on
10/02/2014 and 13/02/2024 at ICR India Pvt. Ltd. Hence, the
issue of authorization by a Gazetted Officer do not come into
play.
15. PW 1 has proved Ex.19 and in order to ascertain
whether there was compliance of Section 42, it would be
apposite to refer to the evidence of PW 4, the Senior
Intelligence Officer, before whom the information was placed.
PW 4 is a Gazetted Officer and he depose that he was working
as Senior Intelligence Officer, C-Cell, DRI, Mumbai Zonal Unit
and he clarify that the equivalent post is of Senior Intelligence
Officer in Customs and Central Excise is Superintendent. He
confirm the statement of PW 1 that a note was put before him
at 07.30 p.m. and he gave instructions to form a team to visit
the premises and examine the consignment. He identified his
signature on Ex.19 alongwith the signature of PW 4.
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16. PW 4 deposed that a team comprising of Intelligence
Officer (PW 1) and he himself, proceeded to the office of ICR
India Pvt. Ltd. situated at Andheri and they reached the
premises at about 10.45 p.m.. Since the search was to be
carried out, two independent witnesses were arranged as
panchas and on apprising them about the raid, they expressed
their willingness to act as panchas. According to PW 4, at
around 11.00 p.m., they entered the premises of the
operational area of ICR India Pvt.Ltd. alongwith the panch
witnesses. PW 4 speak of the presence of one Nixon D'Souza
(PW 7) in the said area, who introduced himself as Director of
the ICR India Pvt. Ltd. On informing about the purpose of visit,
inquiry was made with him about any parcel of foodstuff to be
transported to London. As per PW 4, Mr.D'Souza checked his
computer system and informed the raiding team that one such
parcel was booked and it was lying in the operational area,
which was bearing Airway Bill No.1234581054 dated
10/02/2014. The parcel was brought before the raiding team
and on one side, it was having some documents affixed. PW 4
has stated that on the Airway Bill, it was mentioned that the
Carton contain foodstuff and it bear the names of the
consignor and consignee. The consignor was one Patel,
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resident of Malad Link Road, Mumbai whereas the name of the
consignee was Mr.Rathod, resident of Belsize Park, London.
The parcel was then opened, which contained different items
of foodstuff, garments and 10 sealed plastic boxes, of beauty
products. Inventory of the contents of the cardboard carton
was prepared and classified into Table-A and Table-B. Table-A
contained the food items alongwith the garments and Table-B
contained ten sealed plastic boxes. After opening lid of one of
the plastic boxes, it was found to contain cream and when
around 5 to 6 spoons of cream was removed, a silver colour
sealed pouch inside the said plastic box was found, which
contained crystalline powder/substance. With the help of field
testing kit, it was tested and gave positive result for Ketamine
Hydrocloride. All other nine sealed plastic pouches contained
similar silver pouch with crystalline substance. The total
weight of the white crystalline substance removed from 10
silver colour pouches was found to be 5 Kg.. The said
substance was seized and the three representative samples of
15 gms. were collected and packed in three different plastic
pouches marked as original, duplicate and triplicate. The
plastic pouches were then enveloped and came to be signed by
PW 4, panch witness (PW 5) and Nixon D'Souza (PW 7). The
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panchnama drawn on 10-11/02/2014, effecting the seizure of
Ketamine HCL valued at Rs.50,00,000/-, is exhibited as Ex.39
through PW 4.
The panchnama record that the raiding team reached
the ICR India Pvt. Ltd. at 23.00 hrs and PW 7, after verifying
the computer system, informed about a consignment being
shipped to London. The said parcel was produced before the
raiding team and all documents related to courier parcel were
handed over. The documents were taken into possession by
the officers and were signed by the panchas and the DRI
officers. The panchnama record that it concluded peacefully at
05.00 hrs. on 11/02/2014. Mr.Nixon D'Souza (PW 7) signed on
the panchnama, recording his presence when it was
conducted.
B] SEARCH AND SEIZURE DURING SECOND RAID
17. The second raid dated 13/02/2014 is based on the
information received by another Intelligence Officer,
Mr.Satyaprakash (PW 15), who is also the Investigating
Officer. On receiving the information on telephone that a
parcel was headed to London through ICR India Pvt. Ltd. in
which Methaqualone was concealed, intelligence note was
prepared by him and put up before his superior officer,
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Mr.Hatangadi (PW 4). The same is exhibited as Ex.43, which
bear an endorsement to the effect that a team may be formed
for the purpose of conducting the raid. PW 15 deposed that the
intelligence note (Ex.43) was typed by him on 13/02/2014 at
9.30 a.m. and he assisted PW 4 in examination of the parcels
lying at ICR India Pvt. Ltd.
PW 4 has deposed about the second raid and he state
that a team was constituted, which comprised of PW 15,
himself and two panchas were asked to act as witnesses, who
agreed. At about 11.00 a.m., the raiding team entered the
premises of ICR India Pvt. Ltd. where they met Nixon D'Souza
(PW 7). On informing the intention of the visit and on making
an inquiry whether any parcel destined for London, declared
as foodstuff, was booked through their office, he informed that
one parcel is booked for London, but the Airway bill is not
prepared since the KYC documents of the parcel were not
available and the person, who came to book the parcel, had
gone to procure the documents. On being directed, the parcel
was brought for examination before the team and when asked,
whether any note or document is accompanying the parcel, a
handwritten note was produced, which mention the consignor
as Madan Shetty, Versova and consignee as Mrs.Panchal,
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London, alongwith her telephone number. The said paper was
seized for the purpose of investigation and was signed by the
panch witnesses and PW 5. On examination of the said carton/
box, the inventory was prepared and the contents were
categorised in Table-A and Table-B; Table-A consisted of food
items such as biscuits and nankhatai etc. and one blue jeans
pant. Table-B contained MTR Rava Idli and MTR Rava Dosa
packets. When the seal of the packet was opened, white
crystalline substance/powder was noticed and it tested
positive for Methaqualone, a psychotropic substance. Other
nine sealed packets of MTR brand contained similar substance
and the weight of the crystalline substance/powder was noted
as 4.996 Kgs. The three representative samples of 15 gms
were drawn and sealed in plastic pouches and placed it in
distinct envelopes marked as original, duplicate and triplicate.
The envelopes were signed by the panch witnesses, PW 7 and
PW 4. The panchnama drawn is exhibited as Ex.44 and it
mention that it commenced at 11.00 hrs. on 13/02/2014 and
concluded at 14.00 hrs. The two panchas, who signed the said
panchnama, are the same who were present during the first
search on 10-11/02/2014 and one of them is examined as PW 5.
PW 7 signed the panchnama recording his presence during the
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conduct of panchnama. The proceedings also bear signature of
PW 4, as the panchnama is prepared in his presence.
18. The panchnama at Ex.44 record that, when the panchas
alongwith DRI officers entered the premises, one person
introduced himself as Nixon D'Souza, the Director of the
courier company and approached the officers. The said
introduction assumes great significance since on the earlier
date i.e. when the premises was raided on 10/02/2014,
Mr.Nixon D'Souza was already introduced to PW 4 as Director
of the courier company. In the wake of the two panchnamas,
the testimony of PW 7 and PW 5-the panch, need an immediate
reference, since Accused Nos.2 and 3 are introduced in the
case through PW 7.
19. PW 7 in his examination-in-chief admit that in the
evening of 10/02/2014, PW 4 approached his office and
disclosed the information received by him regarding some
contraband being concealed in a courier box and he was
desirous of checking the same. In contrast to the recitals of
the panchnama, PW 7 depose that he randomly checked the
boxes and then laid his hand on the box in question, which was
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in a closed condition and which had an invoice affixed on it.
The staff opened the box. Some clothes, eatables and beauty
products/cosmetics were found and some powder was found,
which was indicated as drug. PW 7 deposed that his two
employees signed on the panchnamas alongwith him and he
identified his signature on Ex.39.
About the second raid, he depose that on 13/02/2014,
one more consignment came to his office, which contained
eatables, clothes and pouches of MTR, which were found to
contain drug, in the guise of Idli Rava Mix. The panchnama
(Ex.44) was signed by him along with two employees of his
office and he identified the signature on Ex.44.
20. PW 7, in his examination-in-chief, state that Accused
No.2-Kiran had come to book this parcel in his office, but when
the parcel was booked, he was not in the office and, therefore,
he is unable to identify the person, who booked the parcel. In
the cross-examination, the witness has outlined the KYC
procedure followed by his office for booking a parcel and only
on production of the necessary documents, the KYC was
registered and fed in the company record is his specific stand.
When confronted with the KYC form (Ex.68 colly), which is in
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the name of Kiran Jangale, he admit that the said form does
not bear signature of the customer nor does it have photo
identification or driving licence of the said customer.
PW 7 state that on 13/02/2014, he was called in DRI
office at 9.00 a.m. and accordingly he presented himself. He
state that 3-4 officers were present there which include
Mr.Hatangadi (PW 4), Mr.Parmar (PW 16) and some junior
officers, who interrogated him. He state that he was present in
the office till 4 p.m.. From there, he went to his office and
reached there at 5.30 p.m. and after carrying out the work for
about an hour, he left for home. In the wake of this admission
given by PW 7, the panchnama dated 13/02/2014, which is
recorded by PW 4 by visiting the office of ICR India Pvt. Ltd. at
11.00 hrs. on 13/02/2014 become doubtful as the panchnama
record that the intelligence officers entered the premises of
PW 7 at 11.00 hrs. and he himself was present in his office and
was was introduced to the officers and led them to the parcel
lying in the operational area and which was to be shipped to
London, without an airway bill and it is from this parcel, the
MTR food packets were extracted, which are alleged to contain
the contraband. The panchnama record that that it is
concluded at 14.00 hrs. i.e. 2.00 p.m. PW 7, however, depose
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that he was present in the DRI office from 9.00 a.m. to 4.00
p.m. where the DRI officers were also present and he
specifically mention about the presence of PW 4, PW 16
alongwith some other junior officers. According to PW 7, he
reached his office only at 5.30 p.m.
21. Apart from this glaring admission given by PW 7, he
admit that except recording his statement, the officers did not
obtain his signatures on number of documents in the DRI
office, but his signatures were taken on pages 83 and 84 of
Ex.68-colly. in the office on 13/02/2014. As far as page No.86
of Ex.68-colly. is concerned, he has deposed that he signed the
same on 12/02/2014 in his office, since the officer wanted
record of the said transaction.
About the search carried in his office by PW 4 on
10/02/2014, he depose that Mr.Hatangadi came to his office at
around 7.30 p.m. and an admission has been extracted from
him that it take minimum one hour to reach his office from the
DRI office. He depose that PW 4 was checking the boxes for
about 1 to 2 hours and then concerned box was located. He
deny the suggestion that he assisted him in locating the box
and further explain that if there is any document to show that
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he assisted him in locating the box, then it is a incorrect
document. He deny that he checked the details of the box in
the computer data and state that he do not remember if airway
bill number was written on consignment picked up by PW 4 on
that date. He also do not remember if the label bearing name
and address of the consignor and consignee was affixed to the
parcel. When confronted with Ex.39, he depose that the said
panchnama also does not refect the names of the consignor
and consignee. On being subjected to cross-examination on
behalf of Accused No.2 and being confronted with page Nos.83
and 84 of Ex.68-colly, which is the KYC document, he admit
that he has no acknowledgment of submission of the said
document given to DRI or to the effect that it was received by
his office. He admit that except the signature, page No.84 is
blank. He further clarified that the signature is of the person
whose photograph was affixed, but it is undated and without
any name. He also depose that he was not sure that all the
consignments coming to his office for export are physically
verified about its contents, since it is the responsibility of the
staff to check or not and, therefore, he cannot say that the
consignment to be exported have been physically verified or
not. He attribute the said job to Ms.Stephanie (PW 9) as the
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concerned staff responsible for physical checking of the
consignment. He admit that for verification of the
consignment, it is needs to be dismantled and opened for
physical checking and he cannot say whether consignment in
question was dismantled and opened before it is accepted by
his office and he state that PW 9 would be in a better position
to answer the said question. PW 7 state that one parcel was
physically delivered in his office on 10/02/2014 in between 9 to
10 a.m. whereas the second parcel was delivered on
13/02/2014 in the morning in between 9 to 10 a.m., but he was
not physically present on both the occasions when the parcels
were delivered and he has no knowledge about the
documentation done in respect of the said consignments.
When he was confronted with the KYC from at page 83 of
Ex.68-colly, he admit that there is alteration in the phone
number of Kiran (Accused No.2), which is not authenticated
and, therefore, he has no idea as to who has made the
alteration. When confronted with page Nos.85 and 86 of
Ex.68-colly, which is the bank statement, he state that the
dates mentioned therein and the airway bill number are not in
order and further depose that separate booklet for airway bill
number is not maintained since the airway bill number is a bar
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code, which is generated. He also admit that page No.86 per se
is not a bank statement.
22. The aforesaid admissions given by PW 7, which are
heavily relied upon by the learned counsel appearing for the
Appellants, has a great bearing on the prosecution case as the
prosecution claim that amount towards the courier was paid to
the Courier Company by Accused No.3 and Accused No.2 had
dropped the parcel in office of PW 7. PW 7 further depose that
PW 4 has visited his office at around 7.30 p.m. and the distance
the DRI office and his office is of minimum one hour. Ex.19
which is the intelligence note received and put up before PW 4
record that the information is received at 7.30 p.m. and which
receive an endorsement by PW 4 at 7.50 p.m. The panchnama
drawn on the search of the premises i.e. Ex.39 record that the
raiding team reached the office of PW 7 at 23.00 hrs. and the
proceedings of search and seizure were concluded at 5.00 hrs.
on 11/02/2014. As per PW 7, PW 4 himself checked the boxes
for about 1 to 3 hrs. and then the concerned box was located,
but he did not assist PW 4 in locating the box. The version in
the panchnama (Ex.39) is that PW 7 was asked whether any
courier parcel containing foodstuff was booked for London and
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PW 7 after verifying the computer system told about the
airway bill dated 10/02/2014 issued by their company and one
of the staff members brought the carton before the officers,
which had the airway bill affixed to it. The panchnama also
record that PW 7 was asked to hand over all documents
related to the said courier parcel and some documents were
affixed to the carton in form of a pouch, which on its removal
revealed the Airway Bill number issued by ICR India Pvt. Ltd.
The panchnama further record that PW 7 was informed that
the documents were being taken over by them under the
provisions of the NDPS Act and the DRI officers put their
signatures with date on the said document. PW 7, however,
contradict the panchnama on this aspect. He also does not
support the case of the prosecution that airway bill with the
names of the consignor and consignee was affixed on the
parcel. PW 7 was not present in the office when the parcel was
received and, therefore, it wold be necessary to refer to the
evidence of the concerned witness on the said aspect, being PW
9, since as per PW 7, she had received the parcel and was
responsible for ascertaining its contents before it is accepted
for export and she was the proper person to disclose details of
the courier booked with his company.
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23. Ms.Stephanie Miskquitta (PW 9) was working as the
Customer Service Representative with ICR India Pvt. Ltd. and
was assigned the job to take invoice, KYC and photo ID and to
give copy of the airway bill to the customer. On the Accounts
Department deciding the amount of payment as courier
charges, she used to receive the payment.
Her evidence is very crucial for the involvement of
Accused Nos.2 and 3. As per PW 9, one consignment was
brought by Accused No.2 for booking on 10/02/2014. She
depose that the said consignment was checked in by her boss
i.e. PW 7, who found some 'untoxic' material and he called her,
but she had left the office. She was inquired about the arrival
of any such consignment and she responded in the affirmative.
PW 9 depose that she had given the contact number and cell
number of the person, who had sent the consignment. Accused
No.2-Kiran Jangale is identified as the person, who delivered
the parcel in the ICR India Pvt. Ltd. on 10/02/2014 and his
implication is on the basis of the statement of PW 9. The role
played by Accused Nos.2 and 3 has surfaced through her
testimony.
She depose that before booking of the consignment in
her office, she received a call from person by name Praveen
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(Accused No.3), who wanted to speak to PW 7 in respect of
booking of the consignment to London. She was informed that
the consignment is from Delhi and when she established
contact with her counterpart in Delhi office and contacted
Praveen to inquire about the exact location from where the
parcel is to be picked up, he inquired from her whether any
person on his behalf can drop the consignment in the office in
Mumbai. Accused No.2 is described as the person, who came
to the office to drop the consignment. PW 9, however, do not
recollect the date on which he had came, but assert that the
said person was Kiran, who told that the parcel was to be
dispatched to London and he is the person, who left the parcel.
As per PW 9, after this Accused No.3-Praveen called and told
her that his person would be coming to drop the parcel and she
should accept the same. The name of the person, who was to
receive the parcel i.e. the consignment was Mr.Raj Kamat.
When Accused No.3-Praveen was contacted for charge of
consignment, the account details of the bank were shared with
him. PW 9 state that she confirmed the receipt of the amount
and the transaction details were shared, though the receipt
was not issued. For the purpose of establishing the identity of
the person, who has dropped the consignment, PW 9 state that
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for booking of the consignment, she had obtained photo
identity proof of the person, who has dropped the consignment
and also collected the invoice copy. PW 9 admit her signature
on the statement recorded by the authority, which she has
signed in the DRI office on 15/02/2014, which is marked as
Ex.74. She also identify page No.150 and page Nos.152 to 169,
which are the documents relating to the invoice and airway
bill.
In her extensive cross-examination she outline the
procedure to be followed when a courier is received in the
office and it is stated by her that the invoice is accompanied
with the courier parcel, which contain the names of the
consignor and the consignee and the consignor is required to
sign the invoice. She also admit that a declaration is taken
from the consignor that the parcel does not contain any illegal
article and the declaration is singed by the consignor. The
consignment bear the label of consignor and the consignee and
the same is pasted on the parcel. She also admit that after the
courier parcel is received, they open the parcel to verify
whether the details mentioned in the invoice tally with the
articles kept inside. Thereafter the consignment is closed and
she issue an airway bill, which contain the details and weight
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of the consignment, names of the consignor and consignee and
the stamp of the company and it is signed by her. Before
accepting the consignment, the KYC documents are expected
to be verified and for that purpose the identity proof of the
consignor is obtained, is her version.
As per PW 9, on 10/02/2014 in between 11.00 a.m. to 12
noon, Accused No.2 came to her office and he complied with
the entire procedure narrated by her in examination-in-chief.
According to PW 9, opening and repacking of the parcel was
done by the operational department of her office, after
Accused No.2 left. She admit that the opening and repacking
is to be done in the presence of the person, who brings the
packet, but this process was not followed when this particular
parcel was brought by Accused No.2 in the office. When
confronted with Ex.75, whether the consignor was Mr.R.C.
Patel, she state that she do not remember whether any
document pertaining to R.C.Patel was collected by her. She did
not hand over any document pertaining to identification of
Mr.R.C.Patel as well as of Mr.Kiran (Accused No.2) while her
statement was recorded by DRI.
In the evening of 10/02/2014, she received a phone call
from PW 7, her boss, when she had left the office and on the
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next day morning, when she came to the office between 9.30
to 10.00 a.m., the consignment was shown to her by PW 7 in
his cabin. She depose that she was shown the name of the
consignor and the consignee on the courier packet as well as
the crystal powder, which was white in colour. Further, PW 9
state that the said consignment was lying in their office for 2 to
3 days. She deny the suggestion that her office does not have
any photo identity proof of Kiran Jangale (Accused No.2)
issued by the Government.
24. Another admission of PW 9 is, on 13/02/2014, some
officers of DRI were in her office, who were present when she
attended her duty and her working hours are between 9.30
a.m. to 6.30 p.m. She depose that they remained in their office
till 7.00 or 7.30 p.m. and they were taking charge of courier
packet, which was found on 10/02/2014 and she was also
investigated by DRI officers even on 13/02/2014. She attended
the office of DRI on 15/02/2014 and she had put the signatures
on the documents collectively exhibited as Ex.75, which
include 10 invoices and airway bills. PW 9 categorically admit
that the airway bill and invoice in respect of R.C.Patel, which is
refected on page 150 of Ex.75 at Sr.No.2 is not on record. She
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also admit that she has signed the documents on 15/02/2014
and not prior to that. She, however, admit that the entire set
of documents marked as Ex.75 had been prepared by her, but
she has not collected any KYC document in respect of the
details refecting on page Nos.150 and 152 to 160 of Ex.75.
She also admit that she had reported her higher authority
about not collecting the KYC document, but this was after the
raid by DRI. About the document at page 150, which is a table
containing the details of airway bill and its dates and the
details of the consignor and the consignee, it is admitted by
her to be prepared on 14/02/2014. The witness was put to
extreme scrutiny about the list of airway bill and the
corresponding entries of the consignor and the consignee and
when confronted with some of the entries and the phone
number, she admit that in case of Mr.Ram Yadav, in whose
name one of the invoices was prepared and which refect his
telephone number, she is unable to state, whether the said
number is that of Mr.Ram Yadav, since she had not collected
the KYC documents. Being confronted with page No.153, she
admit that alteration of date was done by her at the DRI office,
on the instructions of PW 7. She also admit that the alteration
was made in the date (month), but do not remember whether
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the alteration was made in the DRI office. She categorically
admit that she had followed the instructions of PW 7. Another
admission is given by her about rewriting being done on page
162 in the DRI office and about the discrepancy in name on
page Nos.162 and 163, she admit that none of the invoice
produced below Ex.75 have invoice number. Another
alteration made on page 165 is also admitted, but it is denied
that it is done in DRI officer. Neither of the alterations were
signed or initialled by her is admitted. She admit of change in
date on page 168 of Ex.75, but state that alteration was made
when copy of Airway Bill was prepared.
25. On being cross-examined on behalf of Accused No.3, who
is alleged to have made phone call to the office, PW 9 state that
on an average, she receive 40 calls in the office and on an
average, 30 calls were made from the two landlines in the
office and the phones were answered by her and one Sujoti,
since there was no telephone operator. PW 9 admit that it is
not possible to recollect the name of each person, who made
the phone call in the office. She also admit that she do not
have any documentary evidence to show that the charges of
consignment mentioned in Ex.75 were deposited in the bank
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account of the ICR India Pvt. Ltd. There is also a clear cut
admission that on an average, she was dealing with 80 to 90
consignments for export and import.
26. From the conjoint reading of the testimony of PW 7 and
PW 9, it is clear that they are the key witnesses, who led the
prosecution to Accused Nos.2 and 3 as the parcel which is left
in the courier company is alleged to have been deposited by
Accused No.2, on instructions of Accused Nos.1 and Accused
No.3, paid the courier charges. These two witnesses are relied
upon to establish the circumstance that on 10/02/2014,
Accused No.2 dropped the parcel and the parcel, which is
opened by PW 4 is alleged to be bearing airway bill No.
1234581054 dated 10/02/2014 and the name of the consignor
was recorded as R.C.Patel and the name of the consignee was
recorded as Mr.Rathod, resident of Belize Park, London with
his mobile number. How the parcel has been detected is a
mystery as version of PW 4 is that he made inquiry with PW
7, on reaching the premises about a parcel containing foodstuff
headed to London and from the computer entry, PW 7 traced it
whereas PW 7 do not corroborate the said version and
categorically depose that it was searched by PW 4 himself for 1
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to 2 hours and located by him. As per PW 7, the said parcel
was booked by Accused No.2, but he was not present in the
office when the parcel was received and, therefore, he point his
finger to PW 9 as the one responsible for following the
procedural formality when the parcel is received in his office
and she is the responsible person for physical checking of the
consignment received. The testimony of PW 9, however, put a
serious dent in the case of the prosecution as she identify the
Accused present in the Court Box, but does not specifically
recognize him as the person, who had visited her office for
booking the consignment. She do not remember the date on
which he visited. The parcel was not checked by her office in
his presence, which is completely contrary to the procedure
adopted by the courier company. She categorically admit in
her cross-examination that the parcel bearing airway bill No.
1234581054 was booked in the name of R.C.Patel, but she has
not obtained any KYC document of Mr.R.C.Patel nor she has
handed over any documents pertaining to identification of
Mr.R.C.Patel or Accused No.2-Kiran to the DRI. However, the
DRI has shown certain documents, being handed over by this
witness, which include a document at page 150 at E.75, which
is prepared by her and include the parcel with airway bill
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dated 10/02/2014. Surprisingly, the very said witness has
admitted in her cross-examination that on an average, she was
handling 80 to 90 consignments, but why she had picked up
only this consignment of 10/02/2014 while preparing the chart
at page 159 is not known. She was not having the KYC
documents of R.C.Patel nor has she tendered the same to the
DRI is her statement. Ex.79-colly do not contain he details of
airway bill in the name of R.C.Patel and the documents
exhibited collectively at Ex.75 pertain to various dates, are
clamped as manipulated and the defence has succeeded in
creating doubt on its veracity by extensively cross examining
the witness, who admitted the overwriting on these
documents, at the instance of PW 7. In any case, in the entire
compilation of documents, there is not a single document,
which connect Accused No.2 to the said consignor. She admit
that she has not handed over any document pertaining to
identification of Kiran to DRI. One KYC document is part of
Ex.68, which has been brought on record through PW 7 who
has stated that his signatures were obtained on the said
document on 13/02/2014. The KYC document exhibited
through PW 7 is a blank document with some signatures
scribed at the end of it, which have not been proved to be of
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Accused No.2 and it is admitted by the prosecution witness
that there is overwriting in the column of telephone number
and the said correction/ overwriting is not authenticated. The
prosecution has not established as to how this document came
in custody of the Investigating Officer as it does not form part
of any panchnama nor it is handed over by PW 9. Moreover,
the seizure of this parcel vide panchnama (Ex.39) is
contradicted by PW 9, as she has deposed that when she
reported to the office on 11/02/2014, the consignment was
shown to her by PW 7 in his cabin,which had the name of the
consignor or consignee affixed on it and it contained crystal
powder white in colour whereas the case of PW 4 is that the
courier packet which is alleged to have contained the
contraband was seized under panchnama Ex.39, samples were
drawn and taken into possession. PW 9, however, say that the
consignment was lying in their office for 2-3 days after
11/02/2014 and on 13/02/2014, when some officers came in
her office, they took charge of the courier packet, which they
found on 10/02/2014.
Even this witness does not speak of any panchnama
being executed of some parcel on 13/02/2014 vide Ex.44 when
the second seizure is alleged to have taken place and she speak
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in tune with PW 7, who state that he was called in the office of
DRI on 13/02/2014 when his statement was recorded and he
was present there till 4 p.m. The case of the prosecution about
second seizure being effected vide Ex.44 on 13/02/2014 is,
therefore, completely demolished by its own witnesses.
27. As far as Accused No.3, who is also implicated on the
statement of PW 9 is concerned, she has deposed that she
receive about 40 calls on an average and make 30 calls per day
and it is not possible to recollect the name of each of the
person, who makes phone call to the office. No special
circumstance is pointed out by PW 9 as to why she
remembered the name of Praveen, Accused No.3 on whose say,
Accused No.2 brought the parcel on 10/02/2014, which is
alleged to have contained the contraband. Her testimony
about the phone call received by her from Accused No.3 for
booking a consignment and the same being brought through
Accused No.2 fail to inspire confidence, as in her examination-
in-chief, she state that for booking of the consignment, she
obtain the photo identity of the person, who has dropped the
consignment and also collected the invoice copy. However, in
her cross-examination, she admit that she had not collected
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any photo identity proof of Kiran issued by Government nor
any KYC document of the said Accused was handed over by
her to DRI. As far as the payment alleged to have been made
for the said consignment by Accused No.3 is concerned, she
categorically admit in her cross-examination that she do not
have any documentary evidence to show that the charges of
consignment mentioned in Ex.75 were deposited in bank
account of ICR India Pvt. Ltd. Moreover, when she admit that
on an average, per day she deal with 80 to 90 consignments, it
is unbelievable that she recollect about this particular
consignment, the payment of which came from Accused No.3
Praveen.
28. These inconsistencies and failure of the prosecution to
implicate Accused Nos.2 and 3 become worst when the
testimony of PW 5, the panch witness is perused. It cannot be
a sheer coincidence that PW 4 chose the two panchas in both
raids, who expressed their willingness to act as panchana and
they happened to be the employees of ICR India Pvt. Ltd.
Further, it is also surprising that if a raid was conducted on 10-
11/02/2014 and the parcel to be dispatched to London,
containing contraband was seized by the DRI officials, another
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parcel is dropped in the courier office on 13/02/2014 and
without following the process of verifying KYC documents, it
gets accepted for its onward journey and again this time,
without ascertaining the details of the person who dropped it.
As per PW 5, on 10/02/2014 at about 11.00 p.m., when he
was present outside the office gate alongwith other panch-
Rohit, DRI officers approached them and inquired in respect of
one consignment with airway bill. They approached PW 7, who
confirmed about a courier destined to London. According to
PW 5, they proceeded to operational area and checked the
consignment, which was opened and found to contain the
contraband and accordingly on conclusion of the procedure,
Ex.39 was drawn. It cannot be a sheer coincidence that on
13/03/2014, when the DRI officers again visited, they
approached the same panchas and the panchnama came to be
executed in their presence as well as in presence of PW 7. As
per PW 5, on the visit of DRI officers on 13/02/2014 at about
11.00 a.m., they made inquiries about one shipment and PW 7
checked about the said shipment, containing foodstuff and
which was found to be containing Methaqualone. As per PW 5,
panchnama started at 11.00 a.m. and concluded at 3.00 p.m.
and was signed by him, other panch Rohit and his boss, Nixon
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D'Souza. The documents attached with the panchnama are the
packing list and the ID proof. In the cross-examination, the
witness admit that when he was called to act as panch, his
duty was over, but he was standing outside the office and he
sought permission from Nixon D'Souza before accompanying
the DRI officers. The said witness also admit that the details
like invoice/KYC were asked before the consignment was
accepted and he also admit that he did not personally see the
airway bill on the box. It cannot be a sheer coincidence that on
10/02/2014, this witness is present outside the office and
called to act as panch and same circumstances prevail on
13/02/2014 when again he was called from outside the office,
to act as panch.
On being confronted with Ex.44 i.e. panchnama of second
seizures drawn on 13/02/2014, he admit that he met
Mr.Hatangadi and Mr.Satyaprakash for the first time and he
introduced Mr.Nixon D'Souza with DRI officers. He never met
them before and it was Mr.D'Souza who traced the
consignment, on the basis of airway bill number. If he was a
panch to the panchnama drawn during the first seizure on 10-
11/02/2014 and if he signed the said panchnama prepared by
Mr.Hatangadi (PW 4), his statement that he met Mr.Hatangadi
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for the first time when Ex.44 was drawn, completely discredit
him and his testimony. As far as the recovery vide panchnama
(Ex.44) is concerned, he categorically admit that, "Only the
powder in one packet was tested. Contraband was found in ten
packets. The samples were drawn from the packet in which
powder was tested." He also contradict the Investigating
Officer, who has deposed that the plastic pouch containing
same was heat sealed whereas the panch witness state that it
was punch sealed. As far as collection of samples during the
raid conducted on 10/02/2014 (Ex.39) to which PW 5 is a
panch, he has deposed that one silver pouch was found in a
herbal cream box and three samples were drawn from it.
29. Another witness, who has participated in the second raid
on 13/02/2014 is PW 15-Mr.Satyaprakash, who has put up the
intelligence note before PW 4, pursuant to which the second
raid was conducted. PW 15 has deposed that he assisted PW 4
in the examination of parcels at ICR India Pvt. Ltd. On
13/02/2014.
30. The testimony of PW 16-Vitthalbhai Ranchodbhai
Parmar, though could be referred at a later point of time, for
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the time being I must make a mention of it for a limited
purpose. PW 16, in his examination-in-chief, depose that on
13/02/2014, he came to the office early in the morning and
recorded the statement of PW 7, Nixon D'Souza in connection
with seizure panchnama dated 10/02/2014 and 12/02/2014.
He admit that Nixon D'Souza was issued summons and in
furtherance of the said summons, he remained present in the
office. The summons issued to Mr.Nixon D'Souza is exhibited
as Ex.68 and it is under the signature of PW 16 whereby he
was directed to remain present in the office of DRI for
recording his statement under Section 67 of the NDPS Act at
9.00 a.m. on 13/02/2014. PW 16 also admit that Mr.Nixon
D'Souza (PW 7) has produced a KYC document showing the
details of the person, who booked the parcel. PW 16 identified
the KYC document produced by PW 7 while giving his
statement. In the cross-examination, he admit that in
statement (Ex.68), complete name of Kiran is not mentioned
and he had not inquired from Mr.D'Souza whether Kiran Vijay
Jangale referred in KYC form was a same person referred as
Mr.Kiran in statement (Ex.68). He admit that in Ex.68 it is
not mentioned by him that Nixon D'Souza had given him
documents annexed to the said statement which are at pages
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85 and 86 and he has not investigated about bill referred in
document at page 86. He has further admitted that it is not
mentioned in Ex.68 that the documents were given by D'Souza
and he had signed on those documents on 13/02/2014 nor had
he signed on the document at page 83 to show that the KYC
form was given by Mr.Nixon D'Souza to him on 13/02/2014.
The witness has also admitted that he had not made any
inquiry with Mr.D'Souza in respect of the documents after
13/02/2014.
The aforesaid evidence brought on record by the
prosecution thus create a cloud over the two searches being
search No.1 conducted vide Ex.39 and search No.2 conducted
vide Ex.44.
C] THIRD SEARCH AND SEIZURE FROM THE HOUSE OF
ACCUSED NO.2-KIRAN JANGALE
31. Now I shall turn to the third search conducted at the
house of Accused No.2 on 14/02/2014. The said search is
conducted by the two officers of DRI, PW 15-Mr.Satyaprakash
and PW 16-Mr.Parmar vide panchnama Ex.129 and the
panchnama bear signatures of both the officers. It is also
signed by Accused No.2 by stating that he was present
throughout the search proceedings described in the said
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panchnama. PW 16 depose that he accompanied with PW 15
and one lady officer alongwith some other officers, went to the
house of Accused No.2-Kiran and arranged for two panchas,
who were residents in the neighbourhood. On knocking the
door, it was opened by Kiran himself, who has been identified
by PW 16 in the Court and they gained entry in the house
consisting of one small room with loft. According to PW 16, on
being asked whether he had delivered the parcel at courier
company, he admitted and stated that there were three parcels
which were ready for delivery and they were prepared at the
instance of Alishan (Accused No.1). The said three parcels
came to be produced in presence of panchas and were
searched which is alleged to have contained a crystalline
powder, which tested positive for psychotropic substance,
Methaqualone found in 7 packets. The substance when
weighed was found to be 3.5 kgs from which three samples of
15 gram were segregated and after following the procedure, a
panchnama was drawn, which is proved through PW 16.
When the said document is perused, it record that the
intelligence officers and the two panchas reached Room No.1,
Lukia Chawl, L.T.Nagar, Kandivali at 13.00 hrs. on 14/02/2014.
The panchas were introduced to the intelligence officer, PW 16
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and after being reported that he is prepared to search the
premises under the NDPS Act, the search was carried out. The
total collection of psychotropic substance from the three
cartons found in the house of Accused No.2 is recorded as
under :-
1. Carton No.A-Off white crystalline powder purported to
be Methaqualone recovered from 7 Rava Idli packets
totally weighing 3.500 kgs.
2. Carton No. B- Off white crystalline powder purported
to be Methaqualone recovered from 10 Rava Idli/dosa
packets totally weighing 5.000 kgs.
3. Carton No. C - Fine white crystalline powder
purported to be Methaqualone recovered from 8 Plastic
jars totally weighing 4.000 kgs.
Apart from this, the panchnama record seizure of some
packing material, clothes, hot seal plastic bag etc. The
panchnama record that it is concluded at 21.30 hrs. It bear
the signatures of panchas, PW 15 and PW 16, the intelligence
officers and of the Accused.
32. Now another action occurring somewhere else in the
same timeframe, discredit this search and seizure. At the
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time when the house of Accused No.2 was under search, the
statement of Accused No.1 was being recorded by PW 3 in the
DRI office, Mumbai at the instructions of PW 16. Summons
was issued to Accused No.1 (Ex.39) which directed his
presence in the DRI office at 2.30 p.m. on 14/02/2014. PW 3
depose that in pursuance of the said summons, Accused No.1
remained present before him and on being explained the
purport of recording of statement under Section 67 of the
NDPS Act, his statement came to be recorded. PW 3 state that
he also produced one Kiran Jangale (Accused No.2) during the
period of recording of statement and both identified each other
and he obtained signatures of both Accused Nos.1 and 2 on the
said statement, which is exhibited as Ex.30. At the end of the
said statement, Accused No.1 has put his signature by scribing
that he had read the statement running in seven pages and it
is correctly recorded as per his say and the same is given by
him, without any threat, force or pressure. PW 3 also signed it,
as the officer of DRI before whom the statement is recorded. At
the end of the said statement, Accused No.1 state as under :
"Now one person is produced before me, whom I have
identified as Kiran Jangle, about whom I have referred
above in my statement. In turn Kiran Jangle has also
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identified me and has put his endorsement alongside."
Below the aforesaid, both Accused Nos.1 and 2 have signed and
put the date as 14/02/2014.
In the cross-examination PW 3 has admitted that the
statement of Accused No.1 was recorded at 2.30 p.m. and it
went for about four hours. In cross-examination, the witness
admit that summons was issued to Accused No.2-Kiran
Jangale before bringing him for confronting with Accused
No.1.
If Accused No.2-Kiran was present before PW 3 when he
recorded the statement of Accused No.1, which was concluded
at 6.30 p.m., how it is possible that Accused No.2 was present
during his house search in Kandivali, which commenced at
13.00 hrs. and was concluded at 21.30 hrs. and he has
endorsed to the effect that he was present throughout the
search proceedings. This glare discrepancy in the prosecution
case strike it hard. The third recovery of the contraband and
psychotropic substance from the house of Accused No.2 vide
panchnama Ex.139 drawn on 14/02/2014 between 13.00 hrs.
to 21.30 hrs. at Kandivali, when the presence of Accused No.2
is marked in the office of DRI, located at Marine Lines, Mumbai
where the statement of Accused No.1 was being recorded by
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PW 3 from 2.30 p.m. and which went for four hours, the
panchnama (Ex.129) smells foul. PW 3 in his cross-
examination depose that while he was recording the
statement, photograph of Vikram Athavale, was given to him
by his senior Intelligence Officer, Mr.Parmar (PW 16). PW 3
clarify that he was not present where the statement of
Accused No.1 was being recorded. He does not clarify whether
the photograph was forwarded on his mobile, by e-mail or
through any distinct mode of communication, which clearly
lead to an inference that Mr.Parmar was not present where the
statement of Accused No.1 was being recorded, but he was
present in the building of DRI. If he was present in the office, it
is impossible for him to be present while the panchnama was
being drawn at the house of Accused No.2, resulting into third
seizure. These incompatible events make the recovery and
seizure incoherent and incongruous. Only either of them can
be believed, in the wake of the distance between the two places
and even presence of DRI officials during seizure become
doubtful.
D] FOURTH SEARCH AND SEIZURE FROM THE HOUSE OF
ACCUSED NO.1
33. The fourth search conducted by the prosecution is in the
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house of Accused No.1 - Alishan Sharma vide panchnama
dated 14/02/2014 where it is recorded that he was present
during the search, which led to the recovery of his bank
statement and maintenance bill along with Indian currency
worth Rs.33,50,000/-. The said document along with money
was seized and the panchnama record the starting time as
13.30 hrs. and concluding time as 17.00 hrs. Senior
Intelligence Officer who conducted the panchnama is examined
as PW 2 and it is exhibited through the said witness at Ex.24.
The panchnama is recorded in presence of two panch
witnesses and PW 2 has deposed that when he proceeded with
two other intelligence officers at Andheri, they were led to a
fat occupied by Accused No.1. As per version of PW 2, on
knocking the door of the concerned fat, it was opened by
Accused No.1 and he was informed about the purpose of visit.
The panchnama record that the sequence of events and
seizure of one bank statement from 15/11/2010 to 15/05/2011
belonging to the Accused and maintenance bill of God Gift
Tower Co-operative Housing Society Ltd, Andheri. The
panchnama record that cash of Rs.33,50,000/- which was
recovered, was in the denomination of notes of Rs.1,000/- and
Rs.500/-. The panchnama is concluded at 17.00 hrs. on the
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same day. The panchnama is recorded in the presence of PW 2
and another Officer of DRI - Yogita Bhange (PW 8). It is signed
by the two panchas and Accused No.1 has signed it by scribing,
"I was present during the course of search proceedings".
Pertinent to note that the statement of Accused No.1 was
recorded by PW 3 by issuing him a summons and directing him
to remain present in the office of DRI at 2.30 p.m on
14/02/2014. The said summons is exhibited as Ex.29 and the
statement of Accused No.1 as Ex.30. In the preface, Accused
No.1 state that he has presented himself in response to the
summons issued to him, directing him to present himself
before the Intelligence Officer on 14/02/2014 at 2.30 p.m. His
statement under Section 67 came to be recorded by PW 4 who
has scribed a date at the end of the statement as '14/02/2014'.
While his statement was recorded, Accused No.2 Kiran
Jangale was also produced and the statement record that
Accused No.1 has identified Accused No.2 and has put an
endorsement alongside. At the end of the statement, signature
of Accused Nos.1 and 2 is seen. Further, Accused No.1 has also
scribed the following words :-
"I have read over the above statement running in 7 pages
and the same has been correctly recorded as per my say
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and the same is given without use of force, threat or
promise."
34. PW 3 who has recorded the said statement has
categorically deposed that statement of Accused No.1 was
recorded at 2.30 p.m on 14/02/2014 and it went on for about
four hours. In the wake of the statement on oath by PW 3 that
Accused No.1 was present in DRI Office from 2.30 till 6.30 p.m,
the house search conducted by PW 2 cannot be believed since
the panchnama (Ex.24) record that the raiding team reached
the residential premises of Accused No.1 located at Andheri at
13.30 hrs., where he was present in the house and identified
himself on being informed about the purpose of the visit and
the search was carried out till 17.00 hrs. Accused No.1 has
endorsed that he was present during the course of search
proceedings, the two events being taking place at the same
time, one at Andheri i.e. in the fat of Accused No.1 and his
statement, being recorded in the office of DRI at Marine Lines,
which necessarily contemplate presence in the DRI Officer,
create a serious doubt in the prosecution version, as either of
this can only be true.
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35. PW 3, the Senior Intelligence Office has claimed in his
examination-in-chief that on 15/02/2014, summons was
served on Alishan Sharma and his statement (Ex.32) was
recorded wherein he identified Smita Athavale (PW 10). The
statement was typed on the computer by PW 3 on which,
endorsement of Alishan was obtained. It will be pertinent to
note that Ex.32 is just a one page statement and the
endorsement on that page refects that Accused No.1 has
scribed that he has read over the above statements running
into 7 pages, in addition to the above, PW 3 has also admitted
that as the statement run into one page, Alishan had no
occasion to state that the statement was running into 7 pages.
Further the said statement refect that there was an
identification of Mrs Smita Athavale and she had put her
name/signature on it on 15/02/2014. She is examined as PW
10, however, neither she has been confronted with this
endorsement nor any question is posed to her about the same.
This is also fatal to the Prosecution case. This lead credence to
the version of learned counsel Mr.Khan that Ex.32 is a
computer typed false statement and bogus endorsements are
obtained on it.
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36. Apart from this, Accused No.1 has examined a defence
witness who has offered an explanation about the cash which
has been seized under the seizure panchnama, but the
prosecution has failed to deal with the specific case set up by
Accused No.1- Alishan.
37. The examination of PW 2 Mubin Juvale, SIO DRI is to the
effect that cash of Rs. 33,50,000/- was seized from his house
vide Ex.24, which is money received from trading in drugs and
psychotropic substance. In his cross-examination, PW-2 admit
that he did not make any inquiry about the business of the
father, mother and the brother of the Appellant No.1 and he
did not conduct any investigation, though he did not agree that
Rs. 24,50,000/- out of Rs. 33,50,000/- was received on account
of family settlement. He also deny the suggestion that there
were documents explaining the money in the house and he
purposely chose not to seize the documents. However, version
of the panch witness do not corroborate his statement. The
Panch (PW 12), who was a party to the seizure of Rs.
33,50,000/- vide Ex.24, has admitted that explanation during
the panchnama was offered by Alishan, which was not
accepted by the DRI officers. He state that Alishan, was
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claiming innocence and pleading that he has not committed
any crime, yet Alishan was forced to accompany the DRI
officers. The said Appellant has also taken a stand vide
Ex.166 in his statement recorded under Section 313, to that
effect. The same is refected on question No. 365, but the
prosecution has failed to contradict the same.
38. The Appellant has examined his mother as DW 2, who has
proved a Deed of Settlement i.e. Ex.178. The same refects that
a relative Nihal Khan had taken a commercial loan of Rs.
14,00,000/- from the Appellant, his father, mother and brother
in January 2010 at 14% interest per annum. The said loan has
been repaid after 4 years alongwith interest totaling to Rs.
24,50,000/- and the said amount was not deposited in the
bank, as a new house was proposed to be purchased. Further,
some amount is also claimed to have been received from
Subhash Singh and document at Ex.180 is tendered as a proof
thereof, which indicate that loan of Rs. 8,00,000/- was taken
as a friendly loan. In the cross-examination, the prosecution
has not asked a single question with regard to Ex.180. The
prosecution has also not challenged the validity and
correctness of the said document. The testimony of DW 2 has
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gone unchallenged, as though extensively cross-examined,
nothing worth damaging the explanation offered for cash
received in the house, is brought on record.
39. The first statement of Accused Alishan was recorded on
14/02/2014 under Section 67 of the NDPS Act, whereas his
second statement was recorded on 15/02/2014. Thereafter
he was shown arrested vide Arrest memo dated 15/02/2014 at
14.00 hours.
PW-15 Satyaprakash has claimed to have recorded the
statement of Alishan (Ex.105) on 23/05/2014. The gist of that
statement is that Alishan had paid Rs. 11,50,000/- to Amin
Shaikh for purchase of Yamaha R-1 bike and for Rs. 6,50,000/-,
Amin Shaikh gave him a Ducati Bike, which he sold to Farhan.
The sale amount was received in cheque and the cheque was
deposited in the account of Smita Athavale.
The amount mentioned as Rs. 11,50,000/- is in direct
contrast to his statement(Ex.32) under Section 67 dated
15/02/2014 wherein it is mentioned that Alishan gave Rs.
10,50,000/- to Amin Shaikh for purchase of Yamaha R-1 bike
bearing Registration No. 88. There is further contradiction in
the statement of Amin Shaikh (Ex.89) recorded on
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28/02/2014, wherein it is mentioned that Rs. 12,50,000/- was
paid by Alishan to Amin Shaikh for purchase of Yamaha R-1
bike however Alishan purchased a Ducati Monster bike for Rs.
6,50,000/-.
It is submitted that there are three versions about the
money being paid to Amin Shaikh. PW 15 has been confronted
with these versions, however, he admit that he has not made
any investigation to the above effect. Neither Amin Shaikh
(PW 13) has given any documentary proof about the receipt of
money from Alishan. There is no document on record showing
sale of Ducati Monster bike to him, though PW 13 claims to
have given it to DRI officers. There is no investigation from the
RTO about sale of any Ducati Monster Bike.
Thus, the statement of Accused Alishan (Ex.105),
recorded under Section 67 of the NDPS Act is contradictory in
all material particulars with no proof of its correctness. The
same has no relevance to the alleged seizure at hand.
E] FIFTH SEARCH/SEIZURE FROM HOUSE OF MRS. ATHAVALE
40. Mr.Hatangadi (PW 4) has carried the search of house of
Mrs.Smita Athavale on 15/02/20214 vide panchnama
exhibited by PW 4 as Ex.47. PW 14 is a witness on the said
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panchnama. The house belong to mother of Vikram Athavale,
who was present in the house when the search was carried
out. The panchnama record that a writing pad was seized
during the course of panchnama. Nothing else was seized
during the said search.
F] INQUIRY AND PANCHNAMA AT SHAHRANPUR, U.P.
41. Intelligence regarding mobile number 9897640490
revealed that it was registered in the name of Pankaj Kumar,
R/o: Brahma Singh, 95, Shukratal Nakur, UP 247342. That
this information was forwarded to Deputy Commissioner of
Central Excise and Customs at Shaharanpur to make further
inquiries. Accordingly a team headed for house of Pankaj
Kumar at Shahranpur, UP and made enquiry vide Panchnama
dated 14.02.2014. During the course of inquiry it was revealed
that mobile number 9897640490 was being used by his elder
brother Praveen Kumar who is r/o: 103/48, Adarsh Colony,
Gurunanak Road, Subhash Nagar, Dehradun.
G] DISPOSAL OF THE DRUGS ALLEGED TO BE SEIZED
DURING INVESTIGATION
42. Vide Letter dated 18.02.2014 Addl. Director H. Garg
wrote to the Commissioner of Customs for disposal of the drugs
after preserving the attached identification tags, seals etc. On
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12/08/2014 vide a panchnama under Section 52A, the
proceedings were carried out where samples from all the three
above mentioned seizures were drawn at the Customs
Basement Warehouse at Ballard Pier. The Learned Magistrate
also issued a certificate to the effect of correctness of the
inventory and the list of and the list of samples drawn the
abovesaid documents are marked at Ex.139 and after
completion of investigation by Mr.Satyaprakash, Intelligence
Officer, DRI (PW 15), he filed the complaint in August 2014.
43. The prosecution rest its case upon the aforesaid searches
carried out at different places, at different time and allege that
the psychotropic substance has been seized during search
Nos.1 and 2 at the office of PW 7 and search No.3 carried out in
the house of Accused No.2-Kiran. The aforesaid searches form
the basis of the charge levelled against the Accused persons,
who face a charge of dealing with psychotropic substances by
engaging in abetment and criminal conspiracy and in an
attempt to commit an offence alongwith preparation to export
the contraband. Careful scrutiny of the distinct searches
reveal the improbability and inconsistency in the case of the
prosecution.
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44. The discrepancies noted above, in the case of the
prosecution, is the fulcrum of arguments advanced by the
respective counsel. Apart from the aforesaid discrepancies,
several other arguments are advanced to create a doubt in the
case of the prosecution and one of the submissions is that the
bulk contraband is not proved, in accordance with law. The
respective counsel have also advanced their arguments on the
manner of sealing of the contraband and submit that the case
of the prosecution also faulter on that aspect. It is also
canvassed that there is enough evidence to point out
tampering of samples, as the samples did not reach the
Chemical Analyser in the same condition, as deposed by the
prosecution witnesses, in particular, PW 4 and PW 6. PW 11,
who gave an admission that the sample packet received by him
for analysis, was not having four wax seal in the corners of
envelope and there is no godown number mentioned on sample
packet, Art.4. PW 18 also admit that when envelope (Art.2)
was received by him, it was not having seal impression of DRI
on four corners and on perusing the Art.2/1, no marking was
existing on it.
The impugned judgment, in detail, deal with the said
submissions, but I do not deem it necessary to consider the
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same in the wake of the seizure of the contraband in all the
three searches, being found to be doubtful and improbable, on
account of the aforesaid discrepancies. Similarly, I do not
deem it necessary to deal with the point raised by the
respective counsel alleging non compliance of Section 53-A of
the NDPS Act, which has also been extensively argued.
45. The prosecution case is to the effect that Accused Nos.1
to 3 had conspired for exporting the psychotropic substance to
London and acted in furtherance of the said conspiracy. The
case of the prosecution is that Accused No.2 at the instance of
Accused No.1 dropped the parcel for its dispatch to London, in
the office of PW 7 and for the said transaction, the courier
charges were paid by Accused No.3. As far as involvement of
Accused No.1 is concerned, it comes through the statement of
the Accused persons, recorded under Section 67 of the NDPS
Act. The said statements of Accused No.1, 2 and 3 inculpate
each other and discern the conspiracy, abetment and
preparation to commit the offence. The recovery of the
contraband from the three searches and the recovery of cash
from the house of Accused No.1 is sought to be connected by
the prosecution through Mrs.Athavale, PW 10, mother of
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Vikram Athavale, since the case alleged against the Accused
persons is that the amount received from the export of
contraband was deposited in her account and which was
meant for her son, Vikram Athavale. However, the house
search of Mrs.Smita Athavale do not lead to any material
recovery establishing any connection as alleged by the
prosecution. If the prosecution allege and accuse, it must
prove the same by cogent and reliable evidence and not merely
leave it for assumption. This is what the prosecution has
precisely done in this case. It fails to connect different ends,
which it invoke and by letting the ends go loose, it failed to
weave the circumstances to nab the Appellants.
46. In the wake of the aforesaid inconsistencies in the case of
the prosecution and its failure to prove the seizure of the
alleged narcotic drug and the substance being recovered in the
three searches, the prosecution fall back on the confessional
statements of the three Accused recorded under Section 67 of
the NDPS Act. The said statements also do not assist the
prosecution, in light of the recent decision of the Hon'ble Apex
Court, in case of Tofan Singh (supra) where the Hon'ble Court
has extensively dealt with the evidentiary value of a statement
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recorded under Section 67 of the NDPS Act and it is declared
that officers invested with the powers under the NDPS Act are
'police officers' within the meaning of the Evidence Act and
consequently any 'confessional statement' made to them will
be inadmissible as an evidence, by virtue of Section 25 of the
Evidence Act and cannot be taken into account in order to
convict an accused. The position of law stands clarified in the
following words of their Lordships of the Hon'ble Apex Court:
"155. Thus, to arrive at the conclusion that a confessional
statement made before an officer designated under Section
42 or Section 53 can be the basis to convict a person under
the NDPS Act, without any non obstante clause doing away
with Section 25 of the Evidence Act, and without any
safeguards, would be a direct infringement of the
constitutional guarantees contained in Articles 14, 20(3)
and 21 of the Constitution of India.
156. The judgment in Kahhaiyalal v. Union of India
[(2008)4 SCC 668] then goes on to follow Raj Kumar
Karwal v. Union of India [ (1990) 2 SCC 409 ] in paras 44
and 45. For the reasons stated by us hereinabove, both
these judgments do not state the law correctly, and are thus
overruled by us. Other judgments that expressly refer to
and rely upon these judgments, or upon the principles laid
down by these judgments, also stand overruled for the
reasons given by us.
157. On the other hand, for the reasons given by us in
this judgment, the judgments of Noor Aga v. State of Punjab
[(2008) 16 SCC 417 ] and Nirmal Singh Pehlwan v.
Inspector, Customs [(2011) 12 SCC 298 ] are correct in law.
158. We answer the reference by stating :
158.1 That the officers who are invested with powers
under Section 53 of the NDPS Act are "police officers"
within the meaning of Section 25 of the Evidence Act, as a
result of which any confessional statement made to them
would be barred under the provisions of Section 25 of the
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Evidence Act, and cannot be taken into account in order to
convict an accused under the NDPS Act.
158.2 That a statement recorded under Section 67 of the
NDPS Act cannot be used as a confessional statement in the
trial of an offence under the NDPS Act."
47. In light of the aforesaid authoratative pronouncement of
law, the statement of the Accused recorded under Section 67 of
the NDPS Act, cannot form basis of conviction, in absence of
any other independent material brought on record by the
prosecution and proved by cogent and reliable evidence.
48. The lengthy judgment delivered by the Special Court has
failed to appreciate the discrepancies and inconsistencies in
the prosecution case and it has held that they do not affect the
case of the prosecution materially. Every piece of evidence
lead before the Special Court has been believed by the Special
Judge and even the evidentiary value of statement under
Section 67 of NDPS Act was appreciated in light of the position
of law, prevailing at the relevant time when the judgment was
delivered, by holding that PW 16, who recorded the statement
under Section 67 of NDPS Act, was not a police officer.
Recording that the psychotropic substance recovered in the
searches was of commercial quantity and holding that the
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charge levelled against the Appellants was proved beyond
reasonable doubt and the involvement of the Appellants being
clearly surfaced on record through the evidence of the
prosecution, the argument like non compliance of KYC
documents and the discrepancies and corrections in the
invoices was held to be trivial points to be paid heed to. The
evidence of Ms.Stephanie (PW 9), who had a talk with Accused
Praveen Kumar, is accepted by the Special Judge with a
reasoning that on the basis of the telephone number given by
her, the prosecution traced these Accused and that the
Accused had identified each other during their statements
before the DRI officers. When the recording of the panchnama
leading to the seizure of contraband in the three searches is
itself doubtful, it is surprising that the same have been
accepted as gospel truth, irrespective of the discrepancy in the
timings, refecting that recording of the statement of the
Accused and carrying of search panchnama at the same time
cannot co-exist.
49. As far as the imposition of punishment is concerned, the
learned Judge has also convicted the Appellants for the
offence punishable under Section 30 read with Section 27A
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and 2(viiia)(iii) of NDPS Act and sentenced them though being
conscious of fact that charge under Section 27A was not
framed. Further, Section 27A provides punishment for
financing illicit traffic in any of the activities specified in the
clauses No.(i) to (v) of clause (viiib). When the search at the
house of Accused No.1-Alishan Sharma has led to seizure of
cash amount and in absence of the said recovery being linked
to the seizure of contraband, the conviction under of all the
Accused under Section 27A, in absence of charge being
framed, cannot be sustained. Section 27A adumbrate a
serious offence which is punishable with RI for a term which
shall not be less than ten years, but which may extend to
twenty years and it is traversity of justice that without
framing a charge under Section 27A against the accused
persons, they are convicted for t he said offence and sentenced
to suffer imprisonment, which is not in accordance with the
statutory provision. The Special Judge appears to have been
impressed by the notoriety of the drug involved, being
Ketamine and Methamphetamine and in absence of
antecedents, minimum punishment prescribed by the Statute
has been imposed. The judgment cannot be sustained, since it
does not appreciate the case of the prosecution brought on
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record, which is full of inconsistencies and discrepancies,
rendering the search and seizure of the contraband doubtful in
all the three searches. The learned Special Judge has grossly
erred in not taking into account the above shortcomings. The
improbabilities and inconsistencies, when put together, lead
one to an irresistible and inescapable conclusion that the
evidence brought on record by the prosecution falls short, as is
required to prove a charge under the NDPS Act against the
Appellants, where the stringent punishment is provided.
Since, the prosecution has miserably failed to prove the
charges, the Appellants deserve benefit of reasonable doubt
and are entitled for their release from the accusations. Even
by taking resort to the presumptions contained under Sections
35 and 54 of the NDPS Act, the prosecution is under obligation
to prove the basic facts, which are totally absent in the present
case. Further, there is a complete failure to establish link
between the money recovered from the house of Accused No.1
and the alleged recovery of the psychotropic substance in the
two searches in the office of ICR India Pvt. Ltd. and the house
of Kiran, Accused No.2. In absence of the statement under
Section 67 of NDPS Act being admissible in evidence, the
material brought on record is not sufficient to sustain the
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conviction of the Appellants under the Sections with which
they are charged. The impugned judgment, therefore,
warrants an interference and is liable to be set aside on
account of the gross error committed by the learned Special
Judge in not appreciating the evidence on record, resulting
into a perverse finding being rendered, which deserve to be set
aside. The Appellants need to be restored with their liberty
and are entitled to be released, on the impugned judgment of
conviction and sentence being set aside.
Resultantly, the Appeals are allowed. The impugned
judgment of conviction and sentence, dated 15/12/2018
delivered in Special Case No.152 of 2014 is quashed and set
aside.
The three Appellants stand acquitted of the charges
framed against them and they are set at liberty forthwith,
unless their custody is warranted in connection with any other
crime.
50. In view of the disposal of the Criminal Appeals, all
pending Applications also stand disposed of.
[SMT.BHARATI DANGRE, J.]
M.M.Salgaonkar
