Conviction – Recovery of 20 kgs ‘charas’ – Narcotic powder/charas seized from possession of accused never produced before trial Court as material exhibit – Seizure panchnama not drawn at the spot where contraband recovered from car but drawn at Shamlaji Circuit House 12 km. Away – Private Car not a public conveyance, hence, search of private Car requires search-warrant even if search carried out on highway – Conviction reversed

GUJARAT HIGH COURT

(DB)

Before:- Mr. J.B. Pardiwala And Mr. A.C. Rao, JJ.

R/Criminal Appeal No. 638 of 2015 With R/Criminal Appeal No. 1217 of 2015 With Criminal Misc. Application No. 1 of 2017 In R/Criminal Appeal No. 1217 of 2015 With Criminal Misc. Application No. 2 of 2019 In R/Criminal Appeal No. 1217 of 2015. D/d. 18.4.2019.

Yusufbhai Ismailbhai Vohra – Appellant

Versus

State of Gujarat – Respondent

For the Appellant in (Cri. Appeal No. 638/2015):- Mr EE Saiyed, Advocate.

For the Appellant in Cri. Appeal No. 1217/2015):- Ms Dipika P. Bajpai, Advocate.

For the Respondent-Narcotics Control Bureau:- Mr Kshitij M. Amin, Advocate.

For the Respondent/State:- Mr HK Patel, App.

Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 42(1), 8(c), 20(b)(ii), 20(c) and 29 Sealing of samples – Contention by defence that no evidence has come on record in what manner packets containing samples handled, possibility of tampering not ruled out – 20 kgs ‘charas’ recovered from Car concealed in cavities – Neither search-warrant nor authorization of Superior Officer obtained for search of a private Car between sunset and sunrise – Nor reasons recorded for not obtaining search-warrant or authorization – Narcotic powder/charas seized from possession of accused never produced before trial Court as material exhibit – Non-compliance of standing orders/administrative instructions as regards drawing of seizure panchnama – Seizure panchnama not drawn at the spot where contraband recovered from car but drawn at Shamlaji Circuit House 12 km. Away – Private Car not a public conveyance, hence, search of private Car requires search-warrant even if search carried out on highway – Conviction reversed – Appeal allowed.

[Paras 24, 72 to 75]

Cases Referred :

Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 : AIR 2000 SC 821

Baldev Singh (AIR 1999 SC 2378 : 1999 AIR SCW 2494)

Baldev Singh v. State of Haryana, (2015)17 SCC 554

Beckodan Abdul Rahiman v. State of Kerala, 2002 (4) SCC 229

Chhunna alias Mehtab v. State of M.P., (2002)9 SCC 363

Directorate Of Revenue v. Mohammed Nisar Holia, (2008) 2 SCC 370

G.Srinivas Goud v. State of A.P., (2005)8 SCC 183

Gunwantlal v. State of M.P., (1972)2 SCC 194

Hardip Singh v. State of Punjab, (2008)8 SCC 557

Jitendra v. State of M.P., AIR 2003 SC 4236

Joseph Fernandez (AIR 2000 SC 3502 : 2000 AIR SCW 2431)

Kanhaiyalal (AIR 2008 SC 1044 : 2008 AIR SCW 627)

Karnail Singh v. State of Haryana, 2009 (8) SCC 539 : (2009 AIR SCW 5265)

Kashmiri Lal v. State of Haryana, (2013)6 SCC 595

Khet Singh v. Union of India, (2002)4 SCC 380

Kishan Chand v. State of Haryana, AIR 2013 SC 357

Koluttumottil Razak v. State of Kerala, (2000)4 SCC 465

Krishna Kanwar (Smt) Alias Thakuraeen v. State of Rajasthan, (2004)2 SCC 608

M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, 2003 (8) SCC 449 : (AIR 2003 SC 4311 : 2003 AIR SCW 4975)

Madan Lal v. State of H.P., (2003)7 SCC 465

Ouseph v. State of Kerala, (2004)10 SCC 647

Pooran Mal v. The Director of Inspection (Investigation), New Delhi, 1974 (1) SCC 345

Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822

Ram Kumar v. Central Bureau of Narcotics, (2008)5 SCC 385

Ram Singh v. Central Bureau of Narcotics, (2011)11 SCC 347

Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, (1995)3 SCC 610

Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 : AIR 2001 SC 3190 : 2001 AIR SCW 2970

State of Delhi v. Ram Avtar alias Rama [(2011) 12 SCC 207 : (AIR 2011 SC 2699 : 2011 AIR SCW 4316)]

State of H. P. v. Prithi Chand, 1996 (2) SCC 37

State of Maharashtra v. Natwarlal Damodardas Soni, 1980 (4) SCC 669

State of Punjab v. Balbir Singh (1994) 3 SCC 299

State of Punjab v. Baldev Singh, 1999 (6) SCC 172

State of Rajasthan v. Daul Alias Daulat Giri, (2009) 14 SCC 387

State of Rajasthan v. Jagraj Singh alias Hansa, (2016)11 SCC 687

Vijaysinh Chandubha Jadeja, (AIR 2011 SC 77 : 2010 AIR SCW 6800)

JUDGMENT

Mr. J.B. Pardiwala, J. – As both the captioned Appeals arise from a selfsame judgment and order of conviction passed by the 4th Additional Special Judge, Sabarkantha at Modasa, in the NDPS Case No.1 of 2015 (old NDPS Case No.4 of 2009), those were heard analogously and are being disposed of by this common judgment and order.

2. Both the appellants (original accused nos.1 and 2 respectively) were put on trial in the court of the Special Judge, Sabarkantha at Modasa, for the offences punishable under Sections 8(c), 20(b)(ii), 20(c) and 29 of the Narcotics and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’).

3. At the conclusion of the trial, the trial court held both the appellants guilty of the offences enumerated above.

4. The appellant of the Criminal Appeal No.638 of 2015, namely Yusufbhai Ismailbhai Vohra, came to be sentenced to undergo 20 years of rigorous imprisonment with fine of Rs.2 lakh and in default of the payment of the amount of fine, to undergo further 3 years of rigorous imprisonment.

5. The appellant of the Criminal Appeal No.1217 of 2015, namely Farooq Ganibhai Vora, came to be sentenced to undergo 10 years of rigorous imprisonment with fine of Rs.1 lakh and in default of the payment of the amount of fine, to undergo further 1 year of rigorous imprisonment.

I. Case Of The Prosecution :

6. One Shri H.K.Mukherjee, Intelligence Officer, Narcotics Control Bureau, Ahmedabad, lodged a complaint in writing dated 27th August 2009 in the court of the Special Judge, Sabarkantha, for the offences enumerated above. The lodging of the complaint culminated in the NDPS Sessions Case No.4 of 2009 (new NDPS Case No.1 of 2015). The complaint reads thus :

 

  • “3. The complainant states that the Narcotics Control Bureau, Ahmedabad had received a specific information on 27.02.09 that “one Yusuf Ismail Vohra @ Yusuf STD wala of Ahmedabad is most likely to enter in Gujarat along with one Farooq through Ratanpur Check Post on Rajasthan Gujarat Border within a day or two, with consignment of 20 Kgs of Charas in his blue coluuied Cielo Car No. GJ-l-PP-5973. Yusuf STD wala was earlier sentenced in a charas case and is absconding since jumping parole in the year 2006. He has purchased this consignment of charas from one Abdul Gani Bhat of Srinagar (Kashmir)”. This information was submitted to the Superintendent, Narcotics Control Bureau; Ahmedabad immediately.

 

  • 4. On the basis of said information, a team of officers and staff members of NCB, Ahmedabad was formed for taking action. Two panch witnesses were called at Samlaji Circuit House. Accordingly, the panch witnesses arrived at Samlaji Circuit House at 1600 hrs. on 27.02.09. After explaining intelligence to the panch witnesses, the team along with panch witnesses proceeded to Ratanpur Check Post and reached there at about 1645 hrs. on 27.2.09. On reaching there, the team along with panch witnesses kept watch over vehicles coming from Udaipur side to Ahmedabad at Ratanpur Check Post.

 

  • 5. During continued watch at about 0130 hrs. on 01.03.09, a car bearing Registration No.6J-l-PP-5973 was noticed to pass through Ratanpur Check Post coming from Udaipur side and to pass towards Ahmedabad and while on passing through the said check post, the said car was stopped. Thereafter, NCB officers asked name of the driver to which he introduced himself as Faroothai Ganibhai Vohra of Dakor, Nadiad and the person sitting besides him introduced as Yusuf Ismail Vohra of Ahmedabad. Then the NCB officers and panch witnesses introduced themselves to occupants of the car and informed that they had information about concealing of about 20 Kgs. of Charas in the said car by Yusuf Ismail Vohra of Ahmedabad. Hence; the NCB team wanted to carry out search of the said car and personal search of above two persons. After that, the personal search of Yusuf Ismail Vohra and Farooq Ganibhai Vohra was conducted after informing them their right to be searched before a Gazetted officer or a Magistrate u/s 50 of NDPS Act, 1985, which they declined and offered their personal search to the NCB officers present there. The search of Yusuf Ismail Vohra resulted in the recovery of 05 documents, one Nokia Mobile phone, one Airtel SIM card, one Idea SIM card and Rs.4448/- (Cash) and further one document, one Bleu mobile phone, one Reliance SIM card and Rs.40/- were recovered from Farooq Ganibhai Vohra, out of which Rs.40/- was returned to Farooq Ganibhai Vohra in presence of Panch witnesses as detailed in the seizure panchnama. On questioning about concealment, Yusuf Ismail Vohra told to the NCB officers that charas was concealed in secret cavity designed backside of front and rear number plates and also inside the LPG kit installed in the dicky of Car. On removing the number plates and opening the LPG kit, total 11 (eleven) packets were found wrapped in brown coloured adhesive/scotch. On opening one of the packets, blackish grey coloured substance was found in the shape of laddu. On testing a small quantity of the said substance with the drug detection kit, the substance gave positive result for “Charas”: a Narcotic Drug; that thereafter all the packets were given marks as A to K; that it was not feasible to conduct further proceedings on the spot as it being Highway with vehicular and insufficient light, it was agreed upon and decided to conduct further proceedings at Samlaji Circuit House and the accused Yusuf Ismail Vohra, the driver of the car namely Farooq Ganibhai Vohra and Panchas agreed to the same. Thereafter. the officers, Panchas, NCB staff, Yusuf Ismail Vohra and Farooq Ganibhai Vohra came to Samlaji Circuit House along with Cielo Car No. GJ-l-PP-5973. Further proceedings were conducted at the Circuit House in presence of the Panchas, Yusuf Ismail Vohra and Farooq Ganibhai Vohra.

 

  • 6. Thereafter, each packet was opened and small quantity of the substance contained therein was tested with the drug detection kit. All the tests answered positive for charas a Narcotic drug. On weighing all the 11 packets of charas, it weighted to 20.746 Kgs. (Gross). Thereafter, two representative samples each weighing 25 gms. were drawn from all the 11 packets and kept in separate envelopes and marked as A1 to K1 and A2 to K2. All the aforementioned 11 packets of charas marked as A to K and 22 envelopes containing samples marked as A1 to K1 and A2 to K2 were packed properly and sealed with seal “NARCOTICS CONTROL BUREAU” AZU 6 in presence of Panchas as well as the accused Yusuf Ismail Vohra and Farooq Ganibhai Vohra in a manner described in the panchnama dated 27.02.09 to 01.03.09.

 

  • 7. Thus, total 20.746 Kgs. (Gross) of Charas was seized vide Panchnama dated 27.02.09 to 01.03.09 under the provisions of the NDPS Act, 1985 (as amended). 01 Nokia mobile phone, 01 Bleu mobile phone, 01 Airtel SIM card, 01 Idea SIM card, 01 Reliance SIM card, 06 documents, Rs.4448/- (cash) and one Cielo Car (No.GJ-l-PP-5973) with key (one) as detailed in the panchnama were also seized. Thereafter, both the occupants of Cielo Car were summoned u/s 67 of NDPS Act, 1985 and their statements were recorded on 01.03.09.

 

  • 8. That Yusuf Ismail Vohra voluntarily stated in his statement dt.01.03.09 that during 1996-97, he started consuming charas after meeting a Kashmiri person. One person namely Rashid Zargar came in contact with him about the dealing of charas. In the year 1999, he was arrested by NCB Ahmedabad with 1.6 Kgs. of Charas and sent to Jail, where he met a Kashmiri person namely Abdul Gani Bhat; that in the year 2006, he was granted 05 days parole on the grounds of his son’s marriage; that after coming out from Jail on parole, he did not go back to Jail on completion of period of parole and remained absconding; During the year 2007, he went to the residence of Abdul Gani Bhat situated at Radio Colony of Kashmir, who was released from Jail; that he told to Abdul Gani Bhat that he was in need of money as such he wanted to do business of charas and on his request, Abdul Gani Bhat gave him 2 Kgs. of Charas after seven days, which he brought to Ahmedabad by bus and after selling it, Yusuf paid the money to Abdul Gani Bhat. Again, he brought 5 Kgs. of Charas in the month of Dec. 2008 and again the money was paid to Abdul Gani Bhat after selling the Charas; further, he stated that he purchased a Cielo Car No.GJ-1-PP-5973 in the year 2007 from Hashmukh Desai @ Rs. 25000/-. He wanted to fit LPG Kit in the said car due to high rate of petrol, but the LPG Kit could not be fitted at Ahmedabad due to rejection by the RTO Ahmedabad for being old vehicle. So, he made the vehicle’s ownership transferred to his cousin namely Anwar Adambhai Vohra of Ahand, but the RTO Anand also denied for fitting of LPG kit in the said vehicle. Further, he clarified that since, there was no option for income, he decided to do the dealing/supply of charas.

 

  • On 22.02.09, he left for Kashmir by his Cielo Car No.GJ-l-PP- 5973 at about 1900 hrs; he took one person namely Farooq Ganibhai Vohra from Thasra, Dakor for driving purpose. He used to give Rs. 5000/- to Farooq per trip and Farooq was also in need of money. They knew each other since earlier days. He knew that indulging in illegal drug trafficking case is a crime, even though he got involved in the said crime for earning money quickly. On 25.02.09, he reached at the residence of Abdul Gani Bhat, situated at Radio Colony, Jawahar Nagar, Srinagar at night. He used to contact Abdul Gani Bhat on his mobile No.9797869338 from his (Yusuf) mobile No.9714528660. Further, he stated that the packets containing Charas were concealed by Abdul Gani Bhat, Farook and by himself in special cavities specially designed in his Cielo Car, and thereafter on 26.02.09 in the morning at about 0600 hrs. he along with Farooq left for Ahmedabad by his said car. On the way, his car became off road on 27.02.09 at Kelwa towards Ajmer and after repairing the vehicle, he started from Kelwa at about 0100 hrs. on 28.02.09. Again, after running about 10 Kms, his car had a problems and was off road. Then, he made the battery of the car charged for which he had to stay there for 4-5 hrs. After that, around 9 O’clock in the night, he started journey towards Ahmedabad. While passing through Ratanpur Check Post at 1 O’clock on 01.03.2009, the NCB officers stopped and searched his vehicle and 11 packets containing 20 Kgs. of charas were found. After that, the substance kept in the packets was tested and all of them were taken to Samlaji Circuit House. He further stated that the mobile No.9714528660 used by him was in the name of Farooq Ganibhai Vohra. He stated that Abdul Gani Bhat was residing at Radio Colony, Jawahar Nagar, Srinagar. Abdul Gani’s age was around 55 years; height around 5’7″ and was of fair complexion and keeps normal mts’tstache. He has admitted to have indulged in illegal drug trafficking case. On asking, he stated that he used to sell the charas to the consumer by making “VATANA” of 1-1 gm. He was arrested on 01.03.09 at 1500 hrs. by serving upon him a memo of arrest setting out the grounds of his arrest therein.

 

  • 9. Thereafter, the car driver namely Farooq Ganibhai Vohra of Cielo Car No.GJ-1-PP-5973 was summoned to give his statement. Accordingly, Farooq Ganibhai Vohra in his statement dt. 01.03.09 recorded u/s 67 of NDPS Act, 1985 has stated that he was not having any permanent job, as such, he used to do the job of vehicle driving for which he used to earn Rs.150/- per day. He used to get such type of driving job 2-3 times in a week. He stated that he was in the possession of driving licence having its No.NDN/123045/ 98. Further, he stated that he is in relation being from the same caste, with Yusuf Ismail Vohra. He met him before 3-4 months on Yusuf’s daughter’s marriage. Yusuf used to stay in Ahmedabad, but he (Farooq) did not know about Yusuf’s address. Yusuf knew driving of vehicle, but did not have driving licence. He further stated that Yusuf asked him to proceed to Kashmir for which he (Yusuf) asked to pay him Rs.5000/- after coming back from Kashmir. On 22.02.09, in the evening, while he was at Dakor, Yusuf came with a blue coloured Car bearing Registration No.GJ-1-PP-5973 and both of them proceeded to Kashmir. The said car was driven by Yusuf and himself one by one enroute. Due to being first time for going to Kashmir, he drove the car via Kota of Rajasthan, Punjab and reached to Kashmir at about 2300 hrs. at night on 25.02.09. After reaching at Kashmir, they went to residence of a Kashmiri person and had tea & snacks at the residence of said Kashmiri person. After that, about 20 Kgs. of Charas was kept inside the Yusuf’s said vehicle by three of them. At about 0600 hrs. in the morning of 2602.09, they left for Ahmedabad via Punjab, Haryana, Jaipur, Udaipur. On the way, on 27.02.09, the said car became off road at Kelwa and after getting it repaired, they started journey at about 2-3 O’clock and after going about 10-12 Kms. Again their vehicle became off road. Again, after repairing the vehicle, they staned around 9 O’clock at night towards Ahmedabad. While passing through Ratanpur Check Post on 01.03.09 during early hours, their vehicle was stopped by NCB officers and asked about concealment of Charas. In this, Yusuf and he admitted to have concealed 20 Kgs. of Charas in specially made cavity in the backside of front & rear number plates and inside the LPG kit installed in the dicky of the said car. Further, he stated that during personal search, one mobile phone (Blue), one Reliance SIM card and one driving licence (duplicate) and Rs.40/- were recovered, out of which Rs.40/- was returned to him. He had given the physical description of the Kashmiri person, from whom the Charas was procured; he (Farooq) was not aware about his name. The Kashmiri person was having good physique. His age would be around 60 Yrs and had fair complexion, and had moustache. While asking about Yusuf, he stated that Yusuf was dealing with Charas from earlier days and he had knowledge that he (Yusuf) was in jail for illegal activities. Yusuf used the mobile No.9714528660 of Airtel SIM Card which was in his name. He stated that he was staying in rented accommodation for which he used to pay Rs.350/- per month. He further stated that he had no bank account and fixed deposit. He had no vehicle also in his name. He stated that the mobile number of Reliance SIM Card used by him was in his name. He admitted to have indulged in illegal ding trafficking case. He was arrested on 01.03.09 at 1440 hrs. by serving upon him a memo of arrest setting out the ground of his arrest therein.

 

  • 10. Thereafter, a summon was issued to Shri Hashmukh Maganlal Desai, seller of Cielo Car No.GJ-l-PP-5973 to Yusuf Ismail Vohra, who stated in his statement dt.27.03.09 recorded u/s 67 of NDPS Act, 1985 that he was asked to appear before the NCB office on 25.03.09 vide Summons No. (245) dt. 05.03.09. Accordingly, he appeared before NCB office on the date and time specified in the aforesaid summons, but he did not bring the relevant documents with him as such, he was asked to appear on 27.03.09 with relevant papers with regard to the car. On 27.03.09, he appeared before the NCB officer to depose his statement. He stated that he is doing the business of buying & selling of old vehicles for last 12-14 years. His two brothers namely Narayanbhai, aged 50 Yrs. and Rajendrabhai, aged 41 Yrs. are also with him in the said business. Further, he stated that he used to purchase old vehicle from the party and after repairing the said vehicles, he used to sell it of to the new party. He stated that he knew Yusuf Ismail Vohra for last 10 years. Yusuf purchased a Maruti-800 Car from him in the year 1999 and also had knowledge that Yusuf was arrested for charas dealing and was in jail. On asking, he stated that he came to know through newspaper that Yusuf was again arrested on 01.03.09 with Charas. Further, he stated that Yusuf came to his shop for three times in the year 2007, though he could not remember the exact dates of his coming. After selection of Cielo Car (No.GJ-1-PP-5973) Yusuf purchased it on 14.07.07 by cash @ Rs. 25,000/-. At the time of delivery, he handed over the original RC book, 3rd Party Insurance etc. to Yusuf. After taking the delivery of the said car, again Yusuf came to his shop after 2-3 days and said to transfer the ownership of the said vchicie in the name of Shri Anwarbhai A Vohra of Anand. In this regard, he gave residential proof of Anwarbhai and also requested to transfer the ownership immediately. On his request, he submitted the papers of the said car to RTO Ahmedabad on 21.07.07 and thereafter took out the NOC. He produced the xerox copy of RC book, NOC duly signed by him as a token of proof. He further stated that he did not give any delivery note to Yusuf at the time of selling of vehicle and at present he is not having any receipt towards car selling to Yusuf. He stated that he did not know Anwarbhai of Anand. He runs his dealership in the name of Sai Motors, Paldi Ahmedabad and produced a copy of his business/visiting card duly signed by him. On showing the photograph of Yusuf Ismail Vohra, Hashmukh Maganlal Desai confirmed that he (Yusuf Ismail Vohra) was the same person, who purchased the said car from his shop.

 

  • 11. Further, summons was issued to Anwarbhai Adambhai Vohra R/o 64-Bhalej Road, Rojina Park, Anand, cousin of Yusuf Ismail Vohra, in whose name the ownership of Cielo Car No.GJ-l-PP-5973 was transferred stated in his statement dt.05.06.09 recorded u/s 67 of NDPS Act, 1985 that he did not receive the summons dt.09.03.09 as the same was sent to the address of 80, Ismailnagar, Jakatnaka, Anand. His said residence was sold in the year 2003. He runs a tea stall near Sabras Hotel, Anand. He earns Rs. 300-400/- daily. Apart from this, he has no extra income. On asking, he stated that Yusuf Ismail Vohra is his cousin in relation. He had knowledge that Yusuf was in Jail for involvement in some illegal activities. He came to his residence sometimes in the year 2007 to meet their family members. Yusuf told them that he was released from jail. In the year 2007, Yusuf came to his residence on one day, when he was not present in his home, though, he could not remember the exact date of Yusuf’s coming to his residence. After coming to his residence, Yusuf asked to his wife to give his ID proof for mobile connection. On his request, his wife gave the original Voter I.Card to Yusuf and after taking the original Voter I.Card, Yusuf left and did not come back after that and even he did not return his voter I.Card also. On asking, he stated that he had knowledge that Yusuf was arrested for involving in charas case and presently in jail. Further, he stated that he had no knowledge about the vehicle used by Yusuf for taking Charas, which was in the name of him (Anwarbhai). Further, he stated that how Yusuf purchased the said vehicle in his name and how utilized it, he had no knowledge at all. On showing the signature of Vohra Anwar Adambhai made in Form No.30, he stated that the signature available in the said Form was not made by him. He stated that he had knowledge that Yusuf was apprehended with Charas on 01.03.09 and presently in jail, but he had no knowledge about the Cielo Car (No.GJ-1-PP- 5973). Further, he stated that he is not having any vehicle. He is a poor person. He produced the copy of his wife’s Voter ID Card and Electricity Bill duly signed by him.

 

  • 12. On the basis of statement of Yusuf Ismail Vohra, he was placed under arrest at 1500 hrs. on 01.03.09 and Farooq Ganibhai Vohra was placed under arrest at 1440 hrs. on 01.03.09 by serving upon them memo of arrest detailing the grounds of their arrest as mentioned in foregoing paras. Yusuf Ismail Vohra and Farooq Ganibhai Vohra were produced before the Hon’ble Sessions Court, Himmatnagar on 01.03.09 and they were remanded to judicial custody at Sub Jail, Himmatnagar.

 

  • 13. The Superintendent of NCB, Ahmedabad was informed about the search, seizure and arrest under the provision of section 57 of NDPS Act, 1985 well within time frame.

 

  • 14. That the samples drawn from the packets of charas seized on 01.03.09 were sent to CRCL, New Delhi by insured post on 02.03.2009. The report received from CRCL, New Delhi confirmed positive for Charas.

 

  • 15. That the complainant further submits that inspite of strenuous efforts Kashmiri person namely. Abdul Cami Bhat of Srinagar (J&K), who involved in conspiracy and commissioning of this offence could not be located and investigation against him could not be completed because of his non availability. Complainant further submits that summons have been issued to Abdul Gani Bhat R/o Radio Colony, Jawaharnagar, Srinagar (J&K) on 02.03.09 by RPAD to appear before the NCB officer, NCB Ahmedabad on 16.03.09, but the summons was received back by this office with specific remarks of postal authority “Incomplete address”. During investigation, it was revealed that the mobile number 9797869338 used by Abdul Gani Bhat was in the name of Mohd Maqbool S/o Amma Kuchay R/o Tullamulla, Ganderbal, Srinagar. Accordingly, Shri Mohd. Maqbool was issued summons vide this office letter No.NCB/AZU/CR-01/2009/422 dt. 15.04.09 with direction to appear before the NCB officer, NCB Ahmedabad on 30.04.09, but the said summons was also received back undelivered with the specific remarks of postal authority “Incomplete address”. Apart from above, the Zonal Director NCB Jammu was also requested vide this office letter No.NCB/AZU/CR-01/2009/223 dated 01.03.09 to make efforts to verify the address of Abdul Gani Bhat and search his house and to apprehend him for investigation purpose. Further, the matter was taken up with SSP, Srinagar Police by Jammu Zonal Unit vide their letter No.XII/V/JZU/2009/ FUA/641 dt.02.03.09. The Superintendent, Jammu Zonal Unit was further requested to intimate the present status of the case vide this office letter No.(878) dated 28.07.09. Besides, the Zonal Director, Jammu Zonal Unit, Jammu was requested vide this zonal unit letter No.(881) dated 28.07.09 to enquire into the matter especially on the mobile number 9797869338 in question, which is in the name of Mohd. Maqbool and record his statement u/s 67 of NDPS Act, 1985 in order to ascertain the actual user of the above mobile number and his relation/connection, if any with Abdul Gani Bhat of Srinagar. Also requested to make efforts to trace out Abdul Gani Bhat. Efforts are afoot to trace this person, hence, the prosecution reserves its right to file separate complaint after he is located and investigation against him is completed.

 

  • 16. That the complainant submits that in support of this case, the prosecution relies upon the witnesses, the documents and list of Muddamal appended as Annexure-‘A’, ‘B’ and ‘C’ to this complaint respectively. The complainant also reserves its right to examine more witnesses and also to adduce more evidence if need so arises. The complainant submits that to produce, manufacture, possess, sell, purchase, transport, ware house. consume, import inter state, export inter state, import into India, export from India or transit any narcotic drugs or psychotropic substance is prohibited under section 8(c) of NDPS Act, 1985 (as amended) and punishable under section 20 (b)(ii)(C), if it is in commercial quantity. Charas is defined in section 2 (iii)(a) of NDPS Act, 1985. Further, Charas is a Narcotic drug as defined in section 2 (xiv) of NDPS Act, 1985.

 

  • 17. That the accused No.1 & 2 along with other known and unknown persons entered in a criminal. conspiracy with intention to procure, purchase, sell, transport, store and import interstate Charas and in furtherance to this conspiracy, have actually carried out activities which are prohibited under section 8(c) of the NDPS Act, and thereby have committed an offence punishable under section 29 of NDPS Act, 1985 (as amended).

 

  • 18. The complainant therefore, prays that taking into consideration above stated facts on records as the accused No.1 & 2 have committed offence punishable under section 8(c) read with section 20(b)(ii)(C) and section 29 of NDPS Act, 1985, the accused may please be dealt with according to the law.”

7. Thus, the case of the prosecution is that the Narcotics Control Bureau, Ahmedabad, received a specific information on 27th February 2009 that one Yusufbhai Ismailbhai Vohra @ Yusuf STDwala of Ahmedabad (appellant of the Criminal Appeal No.638 of 2015) was likely to enter the State of Gujarat along with one Farooq Ganibhai Vora (appellant of the Criminal Appeal No.1217 of 2015) in a Cielo Car with 20 kgs. of ‘charas’. The specific information was that the accused were to enter the State of Gujarat through the Ratanpur Check-Post. The information was to the extent that the accused were travelling in a bluecoloured Ceilo Car bearing registration No.GJ-1-PP-5973 and the contraband could be found clandestinely concealed in some parts of the car.

8. It is the case of the prosecution that one Shri Sanjay Patel, Intelligence Officer, NCB, Ahmedabad, reduced the information into writing and communicated the same to his superior officer, namely Shri P.N.Sarvaiya, Superintendent, NCB, Ahmedabad. On the strength of the information received by the NCB, a close vigil was kept at the Rajasthan-Gujarat border, more particularly at the Ratanpur Check-Post. According to the case of the prosecution, on 1st March 2009 at 1:30 in the night hours, the car bearing registration No.GJ-1-PP-5973 was noticed passing through the Ratanpur Check-Post. The officers of the NCB intercepted the car. The NCB officers found the two accused herein inside the car. Farooq Ganibhai Vora was driving the car, whereas Yusufbhai Ismailbhai Vohra was sitting next to the driver. The search ultimately resulted in recovery of ‘charas’ weighing about 20 kgs. The contraband was concealed clandestinely in three parts of the car. Three packets were recovered from a cavity made near the front number-plate. Few packets were recovered from a cavity made inside the LPG kit installed in the car and few packets were recovered somewhere from a cavity made in the rear number-plate. In all, 11 packets were recovered from the car found wrapped in a brown-colour adhesive/scotch. It appears that some part of the panchnama was carried out at the Ratanpur Check-Post itself and later all other procedures were undertaken at the Shamlaji Circuit House. The samples of the contraband ‘charas’ were collected and were put in a sealed packet. It also appears that summons were issued to both the accused at the Shamlaji Circuit House, and pursuant to the same, their statements came to be recorded under Section 67 of the NDPS Act. Later, both the accused were arrested and produced on the next date before the Special Judge. Thereafter, the complaint was lodged in the court of the Special Judge, upon which, cognizance was taken and the accused were put on trial. As they have been convicted for the offences enumerated above, they are here before this Court with their respective Appeal.

9. It appears from the materials on record that so far as the appellant of the Criminal Appeal No.638 of 2015, namely Yusufbhai Ismailbhai Vohra, is concerned, he has been convicted for the offences under the NDPS Act for the second time. It appears that in the past he was arrested in connection with a NDPS offence and was put on trial in the court of the Special Judge, Ahmedabad, in the NDPS Case No.220 of 2000. He was convicted and sentenced to undergo 10 years of rigorous imprisonment with fine of Rs.1 lakh. It also appears that while undergoing the sentence in connection with the NDPS Case No.220 of 2000, he was released on parole. He jumped the parole and committed the second offence, which is the subject matter of the present Appeal.

II. Submission On Behalf Of The Appellant Of The Criminal Appeal No.1217 Of 2015 :

10. Ms.Dipika P.Bajpai, the learned counsel appearing for the appellant (Driver), vehemently submitted that the trial court committed a serious error in holding her client guilty of the offences enumerated above. The principal argument of the learned counsel is with regard to the non-compliance of the statutory provision of Section 42 of the NDPS Act, more particularly, the non-compliance of the second proviso to Section 42(1) of the NDPS Act. Ms.Bajpai submitted that indisputably the Narcotics Control Bureau had prior information that a car was to pass through the Ratanpur Check-Post carrying narcotics. She submitted that such information was reduced into in writing and was communicated to the superior officer. She also pointed that a close vigil was kept for the entire day, i.e. on 27th February 2009. On the next day also, for the entire day, i.e. on 28th February 2009, a close watch was kept. Ultimately, the car in question alleged to be carrying narcotics was intercepted at 1:30 in the midnight. The search of the car thus, according to the learned counsel, was undertaken between sunset and sunrise. The submission of the learned counsel is that the search was undertaken without a search warrant or any authorisation as mandated by the second proviso to Section 42(1) of the NDPS Act. Ms.Bajpai submitted that if the officer concerned was of the view that it was not possible to obtain a search warrant or authorisation, then it was obligatory for him to record the grounds of his belief, as mandated in the proviso. Thus, the principal argument of the learned counsel is with regard to the non-compliance of the mandatory provision of Section 42(1) of the NDPS Act. Ms.Bajpai submitted that the non-compliance of the mandatory provision of Section 42(1) of the NDPS Act vitiated the entire trial and thereby has rendered the judgment and order of conviction illegal. In support of such submission, Ms.Bajpai has placed strong reliance on a recent pronouncement of the Supreme Court in the case of State of Rajasthan v. Jagraj Singh alias Hansa, (2016)11 SCC 687.

11. The second submission of Ms.Bajpai is with regard to the legality and validity of the entire procedure of search and seizure adopted by the officers of the NCB. The submission proceeds on the footing that the entire procedure like drawing of the panchnama, drawing of the samples, sealing, etc. should have been done at the very spot where the car was intercepted and searched. Ms.Bajpai submitted that the officers committed breach of the standing orders/instructions issued by the Central Government in this regard. She submitted that the Shamlaji Circuit House is at a distance of about 12 kms. from the place where the car was intercepted and searched. Such procedure adopted by the officers contrary to the standing orders could be said to have caused grave prejudice to the accused rendering the judgment and order of conviction illegal. Ms.Bajpai further submitted that the non-compliance of Section 55 of the NDPS Act has also rendered the judgment and order of conviction illegal. While elaborating this contention, the learned counsel submitted that as per Section 55 of the NDPS Act, an officer incharge of the concerned police station has to take charge and keep the seized articles in a safe custody by affixing proper seal on such articles. She pointed out that having regard to the oral evidence on record in the form of depositions of the officers, there is no proper entry as regards the contraband in the godown register. She pointed out that even the godown receipts on record does not indicate the time the samples were handed over to the Superintendent of the NCB, Ahmedabad. Ms.Bajpai further submitted that the possibility of tampering with the seal affixed on the bags which were used for collecting the samples also cannot be ruled out.

12. Ms.Bajpai submitted that her client was just a driver of the vehicle. He hails from a very poor family. He was driving the concerned vehicle only for the purpose of his livelihood. He had no idea or knowledge that narcotics had been concealed in the car in a clandestine manner. According to the learned counsel, her client could not be said to be in conscious possession of the contraband seized by the NCB.

13. In the last, Ms.Bajpai submitted that the trial court committed a serious error in placing reliance on the confessional statement of her client recorded by the officers of the NCB under Section 67 of the NDPS Act. She submitted that the statement recorded under Section 67 of the NDPS Act could not be said to be true, trustworthy and voluntary. She submitted that the entire procedure adopted by the officers for the purpose of recording of such confessional statement under Section 67 of the NDPS Act was illegal. According to Ms.Bajpai, the statement of the accused under Section 67 of the NDPS Act cannot be said to be a voluntary statement.

14. In such circumstances referred to above, Ms.Bajpai prays that there being merit in all her submissions, those may be accepted and the accused may be acquitted of all the charges.

III. Submission On Behalf Of The Appellant Of The Criminal Appeal No.638 Of 2015 :

15. Mr.E.E.Saiyed, the learned counsel appearing for the appellant, submitted that his client was earlier convicted for the offence under the NDPS Act and was sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1 lakh. He submitted that later he was found involved in a second offence while he remained at large after being released on parole. Mr.Saiyed pointed out that his client is in jail past almost 14 years. He submitted that the sentence imposed in the first prosecution has been completed and now the sentence of 20 years has started reckoning. He pointed out that if 20 years are to be counted after the expiry of the sentence of 10 years imposed in the earlier prosecution, then his client will have to remain in jail for atleast 16 more years. Mr.Saiyed submitted that his client, at the time of filing of the Appeal, was aged 60 years. So, by the time he would complete the sentence, he would be almost 76 years of age. Mr.Saiyed, in such circumstances, submitted that if this Court is not convinced with any of the submissions on merits as canvassed by Ms.Bajpai on behalf of the co-convict, then atleast, so far as his client is concerned, this Court may direct that the sentence in both the cases to run concurrently.

IV. Submission On Behalf Of The Narcotics Control Bureau :

16. Mr.Kshitij Amin, the learned standing counsel appearing for the Narcotics Control Bureau, has vehemently opposed both the Appeals. He submitted that no error, not to speak of any error of law, could be said to have been committed by the Special Court in holding the accused persons guilty of the offences under the NDPS Act. Mr.Amin submitted that the offence alleged to have been committed by the accused persons is very serious. Both the accused could be termed as drug traffickers or drug paddlers. He submitted that the persons dealing in narcotics are a menace to the society. Such persons are a big threat to the society at large. Mr.Amin submitted that the contention as regards the non-compliance of the mandatory provision of Section 42 of the NDPS Act is without any merit, because Section 42 of the NDPS Act is not applicable in the present case. According to Mr.Amin, as the search was carried out on a highway, i.e. at a public place, Section 43 of the NDPS Act would be applicable. In such circumstances, according to Mr.Amin, there is no question of complying with the provisions of the second proviso to Section 42(1) of the NDPS Act. However, Mr.Amin, with his usual fairness, submitted that if Section 42 is made applicable to the facts of this case, then there is no escape from the fact that the second proviso has not been complied with in this case. He fairly pointed out that the search was carried out between sunset and sunrise, and in such circumstances, the officer concerned should have obtained a search warrant or authorisation, and if the officer concerned had a reason to believe that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, then he was obliged to record the grounds of his such belief and forward the same to the superior officer. However, Mr.Amin maintains that Section 42 of the NDPS Act is not applicable but Section 43 of the NDPS Act is applicable.

17. Mr.Amin further submitted that there is no merit as regards the contention that the entire procedure of drawing of panchnama, samples, sealing etc. should have been carried out at the very place where the car was intercepted and searched and could not have been undertaken at the Shamlaji Circuit House which is at a distance of about 12 kms. from the Ratanpur Check-Post. Mr.Amin submitted that the reliance placed by the learned counsel on the standing orders does not carry the case any further. He submitted that it is true that as far as possible the officers should comply with the standing orders, but for some reason if such administrative instructions are not complied with, the same would not render the search illegal in any manner. To put it in other words, according to Mr.Amin, the same would not vitiate the conviction of the accused persons. Mr.Amin pointed out that the vehicle was intercepted at 1:30 in the night hours on the highway. It was quite dark and the officers were not able to complete the entire procedure at the very same place where the car was intercepted and searched. In such circumstances, the officers had to reach to the Shamlaji Circuit House and complete the entire procedure.

18. Mr.Amin submitted that as regards the statements of the accused persons recorded under Section 67 of the NDPS Act are concerned, they are admissible in law. A proper and legal procedure was adopted by the officers of the NCB before recording the statements under Section 67 of the NDPS Act. The trial court has believed and accepted such confessional statements of the accused persons to be true, trustworthy and reliable. Mr.Amin submitted that when such statements were recorded under Section 67 of the NDPS Act, the appellants herein were not accused of any offence. They might be in the custody of the NCB officers, but they could not be termed as accused at the relevant point of time. Mr.Amin submitted that both the accused could be said to be in conscious possession of the contraband. He submitted that the clandestine manner in which the contraband was stored in the cavities made in the car itself is sufficient to draw a presumption of conscious possession. Mr.Amin invited the attention of this Court to Section 35 of the NDPS Act which provides for a presumption of culpable mental state. Mr.Amin also submitted that the contention as regards improper method of sealing the samples of the contraband drawn by the officers is also without any merit. The entire search was carried out in presence of the panch witnesses who, at the relevant point of time, were serving as the Deputy Mamlatdars in the office of the Collector, Sabarkantha. The panch witnesses have supported the case of the prosecution.

19. Mr.Amin, in support of his submissions, has placed reliance on the following decisions :

 

  • (1)Khet Singh v. Union of India, (2002)4 SCC 380;

 

  • (2)Madan Lal and another v. State of H.P., (2003)7 SCC 465;

 

  • (3)Krishna Kanwar (Smt) Alias Thakuraeen v. State of Rajasthan, (2004)2 SCC 608;

 

  • (4)Ouseph v. State of Kerala, (2004)10 SCC 647;

 

  • (5)G.Srinivas Goud v. State of A.P., (2005)8 SCC 183;

 

  • (6)Ram Kumar v. Central Bureau of Narcotics, (2008)5 SCC 385;

 

  • (7) State of Rajasthan v. Daul Alias Daulat Giri, (2009)14 SCC 387;

 

  • (8)Ram Singh v. Central Bureau of Narcotics, (2011)11 SCC 347;

 

  • (9)Kashmiri Lal v. State of Haryana, (2013)6 SCC 595;

 

  • (10) Baldev Singh v. State of Haryana, (2015)17 SCC 554;

 

  • (11) State of Rajasthan v. Jagraj Singh alias Hansa, (2016)11 SCC 687

20. Mr.Amin prays that there being no merit in both the Appeals, those be dismissed and the judgment and order of conviction be affirmed.

V. Submission on Behalf of The State :

21. Mr.H.K.Patel, the learned APP appearing for the State of Gujarat, has also vehemently opposed both the Appeals. He submitted that even if this Court comes to the conclusion that Section 42 of the NDPS Act is applicable and not Section 43, then the same in substance could be said to have been complied with. Mr.Patel submitted that although the second proviso to Section 42(1) of the NDPS Act could not be said to have been complied with in its letter and spirit, yet the fact that a report under Section 57 of the NDPS Act of the search and seizure was forwarded to the superior officer is as good as complying with the second proviso to Section 42 of the NDPS Act. To put it in other words, according to Mr.Patel, if there is complete noncompliance of Section 42 of the Act, the same would not definitely vitiate the conviction, but if there is partial compliance, then the situation could be said to have been saved for the department. All other submissions of Mr.Amin have been adopted by Mr.Patel, the learned APP appearing for the State.

22. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the Special Court committed any error in convicting the accused persons.

23. We first propose to deal with the principal argument of non-compliance of the second proviso to Section 42(1) of the NDPS Act as vociferously canvassed by Mr.Bajpai, the learned counsel appearing for one of the accused persons.

24. The facts in this case would indicate that the Ceilo car was encountered by the officers at about 1:30 in the night hours, which itself was after sunset and the proceedings in this regard continued right upto 10 O’clock in the morning. Thus, the search in this case took place between sunset and sunrise. It is not in dispute that there was prior information that 20 kgs. of ‘charas’ being transported in a private car. Such information received by the Intelligence Officer was taken down in writing. Exh.94 is the intelligence note. According to Mr.Amin, Exh.94 is a communication of the information to the superior officer. Exh.94 reads thus :

 

  • “Intelligence Note

 

  • Intelligence received indicator that are Yusuf Ismail Vohra @ Yusuf STD wala of ahmedabad is most likely to enter in Gujarat along with one Farookh through Ratanpur check post on Rajasthan – Gujarat border within a day or two with consignment of 20 kg of charas in his blue colored ceilo car No.GJ-1-PP-5973 Yusuf STD wala was earlier sentenced in a charas case and is absconding since jumping parole in the year 2006. He has purchased this consignment of charas from are Abdul Gani Bhat of Shrinagar – Kashmir.

 

Date : 27/02/09

 

Sd/- Illegible 27/2/09

 

Time : 10.30 hrs

 

(SANJAY PATEL)

 

Place : Ahmedabad

 

Intelligence Officer

 

 

NCB, Ahmedabad.

 

 

  • To,

 

  • Shri, P.N.Sarvaiya saheb

 

  • Superintendent,

 

  • NCB, Ahmedabad.”

25. We looked into the record to find out whether the original information said to have been received by the Intelligence Officer and reduced into writing is on record or not. However, we noticed that the original information received by the Intelligence Officer is not on record. What is on record is the communication to the superior officer. In such circumstances, we were not in a position to compare the original information said to have been reduced into writing with the information said to have been communicated to the superior officer vide Exh.94. Be that as it may, we are more concerned with the compliance of Section 42(1) of the NDPS Act.

26. Section 42 of the NDPS Act is extracted for ready reference which applies to this case.

 

  • “42. Power of entry, search, seizure and arrest without warrant or authorisation : – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the department of Central Excise, narcotics, customs, revenue, intelligence of any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or Special order by the Central Government, or any such officer (being an officer superior in rank to a peon, seopy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken down in Writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset,—

 

  • (a) enter into and search any such building, conveyance or place;

 

  • (b) in case of resistance, break open any door and remove any obstacle to such entry;

 

  • (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and

 

  • (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance;

 

  • Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

 

  • (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.”

27. At this stage, it would be apposite to reproduce some portion of the evidence of the PW2 Sisramsing Ramsing Sing examined by the prosecution. The PW2 Shri Sing examined at Exh.74, in his cross-examination, has deposed as under:

 

  • “At the time of the incident, I, Sanjay Patel and H.K. Mukherjee were serving as the Intelligence Officers at the N.C.B. office, Ahmedabad. I have been serving as an Intelligence Officer since July, 2006. Prior to this, I had been serving as an Inspector in the C.I.S.F. It is true that, publication regarding the appointment as an Intelligence Officer is not made in the Gazette. It is not true that, I have not been given the powers under Section 41(2) of the N.D.P.S. Act. I do not know whether the Government has published any notification of my name under Section 41(2) of the N.D.P.S. Act. Mr.P.N.Sarvaiya was our Superintendent. Mr.Ayushyamani Tripathi, Zonal Officer, was superior to him. Our office remains open for 24 hours. Generally, it is open from 9:30 O’clock in the morning upto 6:30 O’clock in the evening. I went to my office at 9:00 hrs in the morning on the day of the incident. It is true that, our officer Mr. Sarvaiya did not give me a written order.

 

  • Question : Did your superior officer Mr. P.N.Sarvaiya give you a written order to search and arrest the accused person during the night hours?

 

  • Answer : There is no need to pass such a written order.”

28. We shall now reproduce some portion of the deposition of the PW4 Hemantkumar Santosh Mukherjee (Exh.102). Shri Mukherjee is also one of the officers of the NCB. In his cross-examination he has deposed as under :

 

  • “It is true that when information of any cognizable offence is received, such information should be sent to the superior officer in a sealed cover. Such information was sent in a cover to the superior officer in this case, but I do not know as to how it was sent in a cover. It is true that I did not make any inquiry in this regard. It is true that I did not make any inquiry as to when and at what time the said information was received by the superior officer. It is true that none of us, i.e. I, Sanjay Patel and S.R. Sing, is a Gazetted Officer. It is true that no authorization letter for search and seizure is produced in this case. It is true that after the registration of the offence and even after the production of the accused, none of us, i.e. I, Sanjay Patel or S.R.Sing, submitted any complaint. It is true that none of the from us have submitted or produced the muddamal in the court.”

29. The facts referred to above make it obvious that the proviso to Section 42(1) of the NDPS Act is attracted. We are not impressed by the submission of Mr.Amin that in the present case Section 43 of the NDPS Act would apply and not Section 42 of the NDPS Act. The submission of Mr.Amin cannot be accepted because the contraband was found from a private car. The search of a private car was undertaken, and according to the case of the department, such search of a private car led to recovery of the contraband. This is not a case in which search of any public conveyance was undertaken. The search could be said to be at a public place being a highway, but such search was undertaken pursuant to a prior information which was reduced into writing, and as noted above, the search was of a private vehicle. At this stage, it would be worthwhile to quote here Section 43 of the NDPS Act with the explanation.

 

  • “43. Power of seizure and arrest in public place. – Any officer of any of the departments mentioned in section 42 may—

 

  • (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

 

  • (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

 

  • Explanation. For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.”

30. Explanation to Section 43 of the NDPS Act says that for the purposes of this Section, ‘public place’ includes any public conveyance, hotel, shop or other place which is intended for use by, or accessible to, the public. Thus, in order to be covered by the expression ‘public place’, the place should be such where public may come as of right.

31. In Section 42 as well as Section 43 of the NDPS Act, the word ‘conveyance’ is there. The difficulty that arises when conveyance is there is that, in what manner it should be interpreted. In our view, in Section 43, the word ‘conveyance’ is qualified by the word ‘public’. But, in Section 42, it is not qualified by any such word. Thus, it is only the public conveyance which is covered by Section 43 but, conveyance other than public conveyance will be covered by Section 42 of the NDPS Act.

32. We have carefully read the evidence of the PW2 (Exh.74) and the PW4 (Exh.102) who are the main witnesses examined in this case. Their evidence does not disclose that the officers conducting the search have recorded reasons for believing that a search warrant or authorisation could not be obtained without affording opportunity for concealment of the evidence or facility for the escape of the offender. There is nothing in the evidence of the PW2 and PW4 to indicate that they had addressed themselves to the requirement of the proviso to Section 42(1) of the NDPS Act to record reasons before undertaking the search between sunset and sunrise. No such grounds have been placed on the record. At this stage, we must address ourselves to one argument of Mr.Amin. Mr.Amin submitted that after the information was received, a very close watch was kept at the Ratanpur Check-Post and the officers were not sure as to at what point of time the Ceilo car would pass through, and in such circumstances, the officer was not in a position to obtain any search warrant or authorisation.

33. We are afraid, we are not in a position to accept such submission, because here is a case wherein the officers were expecting the car to pass through at any point of time and that could be between sunrise and sunset or sunset and sunrise. They had ample time. To be precise, they had almost two full days, but still they failed to obtain the search warrant or authorisation, as mandated under Section 42(1) of the NDPS Act.

34. What will be the legal effect for the non-compliance of the proviso to Section 42(1) of the NDPS Act has been very exhaustively explained by the Supreme Court in one of its recent pronouncement in the case of Jagraj Singh (supra). In Jagraj Singh (supra), the vehicle involved was a Jeep. It was a private Jeep and not a public conveyance. In the said case, the search was carried out between sunset and sunrise. At the same time, there was non-compliance of the proviso to Section 42(1) of the Act. The High Court acquitted the accused persons on the ground that Section 42 of the NDPS Act is mandatory and noncompliance of the same would vitiate the conviction. The State of Rajasthan, being dissatisfied with the judgment and order of acquittal passed by the High Court, went to the Supreme Court seeking Special Leave to Appeal. The leave was granted and the appeal was admitted by the Supreme Court. While dismissing the appeal filed by the State of Rajasthan and affirming the judgment and order of acquittal passed by the High Court, the Supreme Court held as under :

 

  • “7. The learned counsel appearing for the accused have supported the judgment of the High Court and submits that compliance of provisions of Section 42(1) and 42(2) have been held to be mandatory by this Court and due to non compliance of the said provisions, the conviction has rightly been set aside by the High Court. It is submitted that Section 43 of the Act is not attracted since the search was conducted after recording information from informer and Station House Officer himself in his statement had stated the facts for proving compliance of Section 42, hence, it cannot be said that compliance of Section 42 was not required more so the jeep was personal jeep of Vira Ram and High Court has rightly held that there was no material to prove that jeep was a public transport vehicle. No permit from transport authority to ply the vehicle as a public transport vehicle had been filed or even pleaded.

 

  • 8. We have considered the submissions of learned counsel for the parties and have perused the record.

 

  • 9. Whether the High Court committed error in acquitting the accused is the issue which needs to be considered in this appeal. Whether there were sufficient material to support the findings of the High Court regarding non- compliance of Section 42(1) and Section 42 (2) and whether Section 43 was applicable in the present case are the other issues which need to be answered. Whether recovery as claimed by the prosecution is supported from the evidence on record and material and samples were properly sealed are other related issues.

 

  • 10. The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. This Court in State of Punjab v. Balbir Singh, 1994 (3) SCC 299, in paragraph 15 has made the following observations:

 

  • “15. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial.”

 

  • 11. To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed & others v. The State of Gujarat, (1995) 3 SCC 610. The following was stated in paragraph 6 of the said judgment:

 

  • “6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it “for the possession of which he fails to account satisfactorily

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