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TMI Blog2011 (10) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... freely and voluntarily made - Even otherwise, such evidence emanating from the accused himself cannot be considered as independent corroboration to the alleged fact of seizure and recovery - in the absence of any recovery from or at their instance, they cannot be held guilty of the alleged offences merely on the basis of their own confessional statements and the confessional statements allegedly made by the coaccused - Appeals are allowed - Criminal Appeal No. 957 of 2005, 393 of 2005, 71 of 2006, 326 of 2007 - - - Dated:- 7-10-2011 - A.M. Thipsay, J. B.P. Jakhade, Gole, Arfan Sait for the Appellant A.A. Mane, APP, for the Respondent-State JUDGMENT 1. All these four Appeals can be conveniently disposed of by this common judgment as the Appellants in these Appeals, who all were accused in N.D.P.S. Special Case No.21 of 2002, were convicted and sentenced by the learned Special Judge for Greater Bombay by one and the same Judgment and Order. The Appellants were accused of having committed offences punishable under Sections 29 and 20(b)(ii) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as "the NDPS Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntents of the plastic shopping bag, which the Accused No.1 was carrying. The Accused No.1 stated that the bag was containing Charas weighing about 2.500 kgs. and, that, the same was meant for delivery to his customer. The Accused No.1 further disclosed that he had received the said Charas from one Suresh Dudhnath Yadav (the Accused No.2). The officers then, in the presence of Panchas, disclosed the provision of Section 50 of the NDPS Act and made the Accused No.1 aware of his right to be searched by and/or before a Gazetted Officers or a Magistrate, to which the Accused No.1 replied in negative. Thereafter, the officers took the personal search of the Accused No.1 in the presence of Panchas and some blackish substance was found in the plastic shopping bag, which had been kept inside the outer plastic shopping bag. The substance had a peculiar odour. A small quantity thereof was tested with the help of Field Testing Kit and the test gave positive indication in respect of the presence of T.H.C. i.e. Hashish, a Narcotic Drug. The said substance was weighed and found to be weighing 2.400 Kgs. Three representative samples of the said blackish substance were taken and put in three plasti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed No.4 was apprehended and, on being asked, disclosed his name as Degreeprasad. The Accused Nos.2, 3 and 4 were brought back to the office of the Narcotics Cell for further inquiry. The recording of the statement of the Accused No.2 under the provisions of Section 67 of the NDPS Act, which had been left incomplete, was continued. The statement of Accused No.3 was also recorded. Thereafter, the statement of the Accused No.4 was also recorded. Thereafter, all the four accused were arrested on 19th October, 2001. The sample packet was delivered in the office of Dy. C.C. on 19th October, 2001. After analyzing the sample, it was reported by the Chemical Laboratory that it was Charas and was covered under the NDPS Act, 1985. The corrugated box containing the main bulk of the contraband seized was deposited in the Customs Godown on 1st November, 2001. 6. Thus, the case in short is that the Accused No.1 was found with Charas weighing about 2.400 Kgs. and, that, he had received the same from the Accused No.2. That, the Accused No.2 had received the same from the Accused No.3 and, that, the Accused No.3 had received the same from the Accused No.4. From whom the Accused No.4 had rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfactorily establishes that the Accused No.1 has committed the offences in question. 12. The prosecution examined nine witnesses during the trial. The first witness is Gajanan B. Wakle, the complainant himself. The second witness is Raghunandan N. Koppikar, also an Inspector of Customs Preventive working in Narcotics Cell, Bombay, at the material time. He was also a member of the team that had laid a trap and apprehended the Accused No.1. He is the one who had recorded the statement of the Accused No.1Satish under the provisions of Section 67 of the NDPS Act (Exhibit-38). The third witness for the prosecution is Hasamuddin L. Shaikh, also an Inspector attached to the Narcotics Cell at the material time. He was also a member of the team that had laid a trap and apprehended the Accused No.1. He had recorded the statement of the Accused No.2Suresh under the provisions of Section 67 of the NDPS Act (Exhibit-41). The fourth witness is Rajendrasingh B. Chauhan, who was attached to the Narcotics Cell as Superintendent of Customs. He was also a member of the team that had laid a trap and apprehended the Accused No.1. On instructions from the Superintendent Kohak, he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re taken by the officers from the Narcotics Cell, on blank papers. 13. The first point which requires determination is 'whether the story of apprehension of the Accused No.1, as stated, and recovery of the Charas weighing about 2.400 Kgs. from him can be safely accepted and believed as true?'. 14. Before proceeding further, it must be observed that one of the Panchas to the alleged search and recovery having turned hostile and the other Panch not having been examined as a witness, the evidence in that regard is only of the officers from the Narcotics Cell. Undoubtedly, there is no rule or law that the evidence of the officers of the raiding team cannot be accepted without the same having been corroborated by atleast one independent witness. The fact, however, remains that when there is no independent witness to support the search and seizure and when the same is intended to be proved only on the basis of the evidence of officers of the raiding team, such evidence needs to be carefully scrutinized. 15. The case of the prosecution is that the secret information in that regard was received by the Superintendent Mr. Shahasane (PW8) and, that, on his instructions 'to be prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was encircled by Shahasane (PW8), Wakle (PW1) and this witness, along with two Panchas. It is, thereafter, that the officers disclosed their identity to the Accused No.1 and Shahasane (PW8) told the Accused No.1 about the information that he had received against him. The version of this witness is that Shahasane (PW8) then asked the Accused No.1 as to what he was carrying in the carry bag and, that, thereupon the Accused No.1 told Shahasane that it contained Charas weighing about 2.500 Kgs., for delivery to his customers. It is thereafter that Shahasane (PW8) apprised the Accused No.1 of the provisions of Section 50 of the NDPS Act. This witness does not state what was the reply given by the Accused No.1, but proceeds to state that thereafter the carry bag, which was with the Accused No.1, was opened. 19. The evidence of Shahasane (PW8) is to the effect that the Accused No.1 was apprehended and the first thing that was done thereafter was that he was asked his name. The Accused No.1 gave his name as Satish Gajanan Khadpe and stated that the plastic bag in his hand was containing 2.500 Kgs. of Charas and, that, he had come there to deliver it to his customers. According to Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Narcotics Cell, Customs Department, has drawn my attention to a decision of the Supreme Court of India in the case of State of Himachal Pradesh vs. Pawan Kumar, reported in AIR 2005 SC 2265, and contended that the provisions of Section 50 of the NDPS Act would not apply to the search of baggage, article or container carried by the person searched. In the present case, the trial Court has proceeded on the footing that the provisions of Section 50 of the NDPS Act were applicable and, that, they had been complied with. The trial Court did not proceed on the basis that the compliance with the provisions of Section 50 of the NDPS Act was not necessary, as what was being searched was only the plastic bag that was being carried by the Accused No.1. However, a reading of the reported judgment cited by Mrs. Mane makes it clear that Their Lordships of the Supreme Court specifically considered the question as to whether the meaning of the words "search any person" occurring in subsection (i) of Section 50 of the NDPS Act would include within its ambit the search of any bag, briefcase, article or container that is being carried by such person. Their Lordships held, after noticing the previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 50 of the NDPS Act were explained to him and he was asked whether he wanted to be searched before a Magistrate or a Gazetted Officer. According to Wakle (PW1), the accused stated that he wanted to be searched before a Gazetted Officer, but admittedly he was not taken to any Gazetted Officer for being searched. Undoubtedly, Shahasane (PW8) says that the Accused No.1 declined the offer of being searched in the presence of any Magistrate or Gazetted Officer, but the least that can be observed is that the evidence of Shahasane (PW8) and the evidence of Wakle (PW1) is contradictory in this regard. 26. However, this is not what I view as significant. The real absurdity in the version of the prosecution lies in the fact that none of the officers say that they took personal search of the Accused No.1 either before or after the Charas was found in the carry bag, that was allegedly being carried by him . Having complied with the provisions of Section 50 of the NDPS Act, according to them, there was no reason for the officers not to have taken personal search of the Accused No.1. In fact, when the Charas was allegedly found in the carry bag, there was a greater and mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the manner in which it was recorded. 30. According to Koppikar (PW2), he asked questions to the Accused No. 1 in Marathi and that the Accused No.1 replied in Marathi. He stated that the Accused No.1 wrote his statement in Marathi. Koppikar (PW2) then stated that, at a particular point, when the Accused No.1 had told about the Accused No.2 and his availability at Shivaji Fish Market, the recording of the statement was stopped. It may be recalled that the case of the prosecution is that thereafter again a team was formed and the officers along with the Accused No.1 went to Shivaji Fish Market. They then came back with the Accused No.2 and then the further recording of the statement of the Accused No.1 took place. The said statement has been produced before the Court (Exhibit38). 31. This statement has been recorded by the Accused No.1 in his own handwriting. In this, the Accused No.1 has admitted, inter alia, that he was apprehended by the officers from the Narcotics Cell while he was holding a plastic bag containing Charas. He has also stated that he had received the said Charas from Suresh (Accused No.2) and, that, Suresh (Accused No.2) had demanded Rs.20,000/for the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Chauhan (PW4) to the Accused No.3. This statement of the Accused No.3 has been produced before the Court and tendered in Evidence (Exhibit44). This is also confessional in nature, in which the Accused No.3 admits having received the Charas from Accused No.4 and of having given it to the Accused No.2. He states that the Accused No.2 was to sell the said Charas and then pay Rs.12,000/to him out of which Rs.8,000/were to be given by the Accused No.3 to the Accused No.4. 35. The statement of Accused No.4 was recorded by Dharmendra Singh (PW5). Dharmendra Singh (PW5) had taken a part in the apprehension of all the accused. According to Dharmendra Singh (PW5), after all the accused were brought back to the Customs Office, he was told by Shahasane (PW8) to record the statement of Degreeprasad (Accused No.4). He then issued a summons to Degreeprasad (Accused No.4), as contemplated under Section 67 of the NDPS Act, and recorded his statement (Exhibit48). The said statement of Degreeprasad (Accused No.4) was produced before the Court and tendered in evidence (Exhibit48). This statement is also confessional in nature in which Degreeprasad (Accused No.4) has, inter alia, admitted that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furthermore now well settled that the court must seek corroboration of the purported confession from independent sources." 38. As against this, Smt. Mane, the learned Counsel for the Narcotics Cell, Customs Department, contended that the statements recorded under Section 67 of the NDPS Act are admissible in evidence and, that, they are reliable. 39. In this case, it must be observed that all the confessional statements have been subsequently retracted by the accused persons. The complaint came to be filed on 14th March, 2002 and a copy thereof, together with the documents including the copies of the statements recorded under Section 67 of the NDPS Act, tendered on 15th April, 2002. The accused persons, by filing separate applications, have retracted the statements, purportedly made by them, on 8th August, 2002 i.e. before the charge was framed. 40. There can be no doubt that the officers of the Narcotics Cell cannot be considered as Police Officers and, therefore, the confessional statements made before them will not be hit by Section 25 of the Evidence Act. Therefore, the confessional statements made before such officers cannot be excluded from consideration on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Charas had already been seized from his possession. He was served with a summons only thereafter and immediately the recording of his statement commenced. When the Accused No.1 was already before the officers concerned, there was no necessity of issuing any summons to him and obviously, as aforesaid, the issuance of summons is only to highlight the claim that the accused was free and was not under any arrest, detention or restraint. 42. That, the issuance of summons was a farce is further apparent from the following. All these summonses mentioned that the presence of accused before the Investigating Officer was required for 'producing documents or things'. The summonses read as under: " and WHEREAS I Shri................... consider your attendance before me necessary for, producing documents or things of the following description in your possession or power." 43. Going by this, we have to accept that the summons was issued for production of documents or things and not for recording of the statement of the accused persons. Interestingly, though the portion reproduced above shows the documents or things required to be produced were to be of the "following description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equiring the Accused No.4 to record the so called statement made by the Accused No.3 was, perhaps to show that the Investigating Agency did not play any role in creating the record. Apparently, the officers concerned seem to have entertained the belief that this would add to the credibility of the statement. In my opinion, this would, on the contrary, show that the Accused No.4, who was asked to write down the statement of the Accused No.3, was totally under the control of the concerned officer. 47. Thus, the issuance of summonses to the accused persons appear to be a farce and the object behind issuing such summonses was apparently only to emphasize that the accused persons were not under any restraint or detention at the material time so as to enhance the possibility of the statements being voluntary. As aforesaid, the facts indicate that the accused persons would not have been allowed by the Department to go away instead of making the statement and, therefore, they certainly were under some restraint. Further, though the summons was for production of documents or things of certain description, which was supposed to be given in the summons, but which was not actually given, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived any amount from any of the others. Interestingly, the source of the Charas was ultimately traced to the Accused No.4, but the Accused No.4 does not seem to have promised to anyone to pay anything for the same. According to the record of his statement (Exhibit-48), he had given the Charas to Accused No.3 and, that, the Accused No.3 was to give him Rs.8,000/in return, but where from the Charas had been received by him has not been disclosed in the said statement. The Investigating Agency does not appear to have carried out any investigation in that direction and seems to have accepted the statement of the Accused No.4 that he 'did not know' who had sent the Charas to him and where he had kept it. Accepting such type of statements and giving up investigation in that direction, also casts a doubt on the genuineness of the prosecution version. The least that can be said in this regard is that the Investigating Agency wanted to build up a case only on the basis of the statements made by the accused persons implicating themselves and other accused and not to bother itself by carrying out any independent investigations for ascertaining the truth. 50. Another curious aspect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used No.1, which has not been corroborated by the independent evidence, is not free from doubt. The conduct of the officers and their reactions to the alleged happenings are inconsistent with the normal behaviour of the officers of the Investigating Agency. It would, therefore, be hazardous to accept the testimony to hold the seizure and recovery of Charas from the Accused No.1 beyond reasonable doubt. The doubt which arises in that regard cannot be removed by placing reliance on the confessional statements made by the accused, which does not appear to be voluntary. Even otherwise, such evidence emanating from the accused himself cannot be considered as independent corroboration to the alleged fact of seizure and recovery. So far as the other accused are concerned, in the absence of any recovery from or at their instance, they cannot be held guilty of the alleged offences merely on the basis of their own confessional statements and the confessional statements allegedly made by the coaccused. The aforesaid discussion indicates that there are various suspicious features and, therefore, a real and substantial doubt arises about the truth of the prosecution version. In my opinion, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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