Gujarat High Court
Superintendent Of Customs vs Mamad Sumar Mokha on 19 October, 2023
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO.1137 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
================================================================
SUPERINTENDENT OF CUSTOMS
Versus
MAMAD SUMAR MOKHA & 5 other(s)
================================================================
Appearance:
MR DHAVAL D VYAS(3225) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1,2,3,5
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,5
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 4
DR. HARDIK K RAVAL(6366) for the Opponent(s)/Respondent(s) No. 4
MR A A ZABUAWALA(6823) for the Opponent(s)/Respondent(s) No. 1,2,3,5
MR RONAK RAVAL, APP for the Opponent(s)/Respondent(s) No. 6
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/10/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
(1) By way of the present appeal, the appellant-
original complainant - Superintendent of
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
Customs has challenged the judgment and order
dated 16.07.1993 passed by Additional Sessions
Judge, Kachchh in Criminal Case No.38 of 1991,
whereby acquitting the opponent Nos.1 to 5 -
original accused for the offences punishable
under sections 20, 28 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985
(NDPS Act).
(2) Shri D.M.Meena, Inspector of Customs, Bhuj,
who was entrusted the duty of keeping watch
over the movement of some suspected persons at
Bhid Gate and surrounding areas, had on
17.01.1986 noticed a new jeep carrying
temporary No.MRB-352 going towards Sarpat
Gate. The inspector had intercepted the said
vehicle at 19.15 hours and inquired about the
ownership of the said vehicle, in response to
which, the persons sitting in the vehicle had
replied that the jeep belonged to one Adam
Noormamad of Bhuj. The said person was suspect
and, therefore, by the time the inspector
could check the vehicle, the said persons
sitting in the jeep had escaped in the busy
area of Bhid.
(3) The said inspector therefore, made a telephone
call to the Customs Divisional Office seeking
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
additional manpower. The officers from the
Customs Division Office rushed to the spot and
checked the jeep in presence of the
independent witnesses, during which 'charas'
weighing 5 kgs. was discovered from the jeep
and, therefore, the recovered quantity of the
contraband and the vehicle were put under
seizure under the panchnama dated 17.01.1986
(Exh.37 at Page 128 of the paper-book).
(4) As per the intelligence, three persons, who
were traveling with the contraband in the jeep
were (i) Dada Juma Mokha (accused No.2), (ii)
Mamad Sumar Mokha (accused No.1), (iii) Umar
Adha Mokha (accused No.3).
(5) During the inquiry the statements of the
accused were recorded, relevant of which, is
extracted hereinbelow:
(a) Umar Adha Mokha (accused No.2) on
21.04.1986; the accused has stated that he
and accused No.2 had reached near Bhid
Market, where they met accused No.1. In
the meeting, accused No.2 had informed
that they would be carrying out work for
accused No.4. All three thereafter sat in
the jeep and proceeded towards Suril Road
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
and had waited for delivery. After some
time, two persons travelling in a rickshaw
had approached them and inquired from the
accused as to whether they work for Adam,
in response to which the accused had said
in the affirmative. Thereafter, the
persons sitting in the rickshaw had handed
over a parcel covered in a polythene bag
and informed to deliver it to Adam. It was
further conveyed by the said persons to
the accused to convey it to Adam, that the
second delivery would be affected after
the price is decided. Thereafter, the
accused had carried the said parcel and
proceeded in the jeep towards the Bhid
Naka, when they were intercepted by a
person (inspector), who had inquired about
the ownership of the vehicle. Being
frightened, accused No.2 had informed the
said person that the jeep belonged to
Adam. By the time the said person could
verify the jeep, the accused had fled.
(b) Mamad Sumar Okha (Accused No.1) on
21.04.1986; he has corroborated the facts
as stated by accused No.3.
(c) Jasab Jama (accused No.2) on 21.04.1986;
the accused has stated that Amad (accused
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
No.4) had approached him for engaging his
jeep for delivering some goods from Bhuj
to Anjar. Adam again met him after a
couple of days and offered good money for
transporting the said goods. The accused
acting under greed, had agreed to
transport the goods, which as per the
statement, was the contraband substance,
to be taken delivery near Surlibhitana
from one Shri Jusab. Accordingly, the said
accused had proceeded to take delivery of
the contraband substance along with other
accused. The other facts narrated in the
statement by the said accused corroborates
to the version given in the statements
given by the accused Nos.1 and 3.
(6) Learned advocate Mr.Vyas appearing for the
appellant submitted that the contraband
substance was recovered from the jeep owned by
the accused. It was submitted that neither of
the accused have been able to explain their
presence and of the jeep at the spot. Further,
it was submitted that the said accused have in
their statements made and signed during the
course of inquiry before the officer empowered
under section 53 of the NDPS Act for
investigation of the offence, clearly
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
confessed their involvement in abating and
conspiring in purchasing and transporting the
contraband substance, which came to be
intercepted by the inspector. It was submitted
that all the accused have confirmed the
involvement of Shri Adam in commission of the
offences punishable under sections 20, 28 and
29 of the NDPS Act.
(7) Learned advocate for the appellant submitted
that in cases of such nature, it would be very
difficult for the prosecution to put on record
the facts, which are to the knowledge of the
accused only and would have to establish the
theory on the preponderance of probabilities.
On such touchstone, it would be relevant that
the contraband substance had been recovered
from the jeep owned by the accused. It was
submitted that three accused, who had
participated in the inquiry have in no
uncertain terms confessed their involvement
and of accused No.4, who had avoided the
summons. There is no version or justification
coming out as to how their presence and of the
vehicle (owned by the accused) was found at
the spot as noted in the panchnama.
(8) Learned advocate for the appellant further
submitted that from the complaint made by the
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
accused against the officers, clearly show
their admission of the fact of recovery and
seizure of the contraband substance in their
presence. It was submitted that the report of
the Central Laboratory issued in reference of
the letter produced at Exh.53 clearly reflects
that the samples have been sent in the
original condition. It was submitted that the
statements of the officials at Exh.51 and
Exh.56 clearly bring out the sequence of
events, which led to recovery of the
contraband substance from the accused.
(9) Learned advocate for the appellant also
submitted that the statement recorded under
the NDPS Act read in context of the discovery
of the contraband substance in the jeep owned
by the accused discharges the initial onus for
the prosecution to prove its case on the
touchstone of preponderance of probabilities
and the legal burden to disprove the
presumption of the involvement of the said
accused in commission of the crime under the
NDPS Act shifts on the accused to prove that
they have not committed an offence under the
NDPS Act (Section 54 read with Section 35 of
the NDPS Act read with section 106 of the
Indian Evidence Act, 1872). The accused,
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
except for needle-pricking the prosecution's
case, have failed to discharge the presumption
under the NDPS Act and, therefore, the
Sessions Court has erred in acquitting the
accused from such a heinous crime. It was
submitted that the acquittal judgment
proceeds on an erroneous premise of doubting
the prosecution on the basis of what ought to
have been done, instead of the manner and
method in which the prosecution has been able
to unearth the illicit procurement of the
contraband.
(10) Per contra, learned advocate Mr.Zabuawala
appearing on behalf of the respondent -
accused submitted that from the events of the
case it is very difficult to consider the case
of the prosecution as the raid was conducted
on 17.01.1986, for which there was no F.I.R.
registered till two years and afterwards a
private complaint under section 200 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) was
filed by the complainant on 20.01.1998 and
hence, only on the ground of delay, the entire
prosecution is fatal and the appeal is
accordingly required to be dismissed.
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
(11) Learned advocate appearing on behalf of the
respondent - accused further submitted that
according to section 154 of the Cr.P.C., if
there is any cognizable offence occurred the
same is required to be reduced in writing in
form of Section 154 of the Cr.P.C. and then
the criminal procedure is out into motion of
arrest, statement, confession, seizure,
sending muddamal for laboratory test and
recording the statement of witnesses under
sections 161 and 162 of the Cr.P.C., however,
in the present case there is no F.I.R. for the
cognizable offence and there is no subsequent
procedure as per the Cr.P.C. was followed and,
therefore, the case against the accused is
against the settled provision of law, which is
required to be dismissed.
(12) Learned advocate appearing on behalf of the
respondent - accused also submitted that from
the events one more thing clearly transpires
that as per the allegations of the prosecution
when the complainant and raiding party found
the NDPS substance from the jeep on
17.01.1986; then why they have not informed
the higher authority / police authority and
why on the very same day they have not sent
the samples for the Forensic Science
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
Laboratory (FSL). It was submitted that it is
transpired from the record that the raiding
authority / complainant seized the muddamal
substance on 17.01.1986 and sent it for FSL on
04.02.1986, which is not believable at all. It
was submitted that not only that but what and
how they have saved / preserved the same under
whose custody from 17.01.1986 to 04.02.1986,
the prosecution is very silent on this issue
and hence, the prosecution case is not
believable at all. It was submitted that even
for sending the muddamal to the FSL and its
chain of seal is not proved and hence, the
trial court has rightly observed in its
judgment and order at Paragraph Nos.41, 42,
44 and 45. Thus, it was submitted that
considering the detailed observations of the
trial Court, the present is required to be
dismissed.
(13) Learned advocate appearing on behalf of
respondent - accused further submitted that
from the records it also transpires that the
confessional statement was recorded by the
officer viz. Shri H.D.Bhaat in presence of
other officer viz. Shri S.K. Sharma on
21.04.1986 even after the confessional
statement was recorded by the officer; there
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
was no procedure followed to register the
F.I.R. and after this incident, the private
complaint was preferred on 20.01.1988;
however, this event is not believable at all
as even having the confessional statement of
the accused there was no F.I.R. registered by
the officer / prosecution and after two years
i.e. on 20.01.1988 the private complaint was
filed, which is not at all believable and
hence, the appeal is required to be dismissed.
(14) Learned advocate appearing on behalf of the
respondent - accused further submitted that
the entire case of the prosecution is based on
the confessional statement of the accused. It
was submitted that the trial Court has rightly
observed that there is no evidence whatsoever
available to accept the case and to prove the
case of the prosecution with other and
independent evidence, however, the trial Court
has rightly observed in the judgment and
considering the same, the present appeal is
required to be dismissed.
(15) Learned advocate appearing on behalf of the
respondent - accused further submitted that
even in the recent pronouncement of the
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
judgment of the Apex Court in the case of
Tofan Singh vs. The State of Tamil Nadu, 2021
(4) S.C.C. 1, the Apex Court has observed that
the confessional statement of the accused has
no admissibility, which made before the
officer for the purpose of the NDPS Act and,
therefore, considering the same, the present
appeal is required to be dismissed.
(16) Learned advocate appearing on behalf of the
respondent - accused submitted that the
prosecution has not established the connection
of respondent No.4 with the vehicle Mahindra
Jeep. It was submitted that the search was
carried out at the house of respondent No.4 on
18.01.1986 but nothing objectionable was
recovered from there.
(17) Learned advocate appearing on behalf of the
respondent - accused further submitted that
respondent No.4 had filed the complaint
against complainant - Shivkumar Rameshwardas
Sharma, Superintendent of Customs and
A.J.Singh, Assistant Collector of Customs
before Chief Judicial Magistrate, Bhuj being
Criminal Case No.269 of 1986 for the offence
punishable under sections 192, 193 and 195 of
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
the Indian Penal Code, 1860 on 28.01.1986 i.e.
prior to the complaint filed against the
respondents, which clearly suggest that the
entire case was concocted by the prosecution
and hence, the Trial Court has rightly
acquitted the respondents.
(18) We have perused the evidence on record and the
impugned judgement under challenge.
(19) The entire case of the prosecution hinges on
the confessional statements made by the
accused before the appellant-officer. Reliance
is placed on the provision of section 53 of
the NDPS Act. The issue on which the present
appeal is filed is no more res integra. The
Apex Court in the case of Tofan singh (supra)
has held 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 Evidence Act, and cannot be
taken into account in order to convict an
accused under the NDPS Act - a statement
recorded under section 67 of the NDPS Act
cannot be used as a confessional statement in
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
the trial of an offence under the NDPS Act.
Thus, the case of the appellant falls flat in
view of the declaration of the Apex Court.
(20) It is also noticed by us that the contraband
article was seized on 17.01.1986 and it was
sent to FSL on 04.02.1986, the prosecution is
blissfully silent about the delay in sending
the same and under whose custody the same
remained. It is also evident that the
confessional statement was recorded by the
officer viz. Shri H.D.Bhaat in presence of
other officer viz. Shri S.K.Sharma on
21.04.1986 and even after the confessional
statement was recorded by the officer; there
was no procedure followed to register the
F.I.R. and after this incident, the private
complaint was preferred on 20.01.1988 after a
period of two years. No explanation is coming
forward for such a huge delay. This fact is
reminiscent of lethargy shown by the officers
in taking the crime very causally.
(21) Thus, on the overall appreciation of evidence,
we do not find that the judgment and order of
acquittal passed by the Trial Court suffers
from any infirmity or perversity. The Trial
NEUTRAL CITATION
R/CR.A/1137/1996 CAV JUDGMENT DATED: 19/10/2023
undefined
Court has precisely acquitted the opponents
for which they were charged.
(22) As a consequence, the appeal fails. The same
is dismissed. R & P shall be returned to the
trial court.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(GITA GOPI,J)
***
Bhavesh-[pps]*
