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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 ..... tences, have filed the above separate Appeals. 2. The Appellant in Criminal Appeal No.957 of 2005 is the original Accused No.3, the Appellant in Criminal Appeal No.393 of 2005 is the original Accused No.1, the Appellant in Criminal Appeal No.71 of 2006 is the original Accused No.4 and the Appellant in Criminal Appeal No.326 of 2007 is the original Accused No.2. For the sake of convenience, the Appellants shall be referred to by their positions in the trial Court. 3. The said sessions case arose on the basis of a complaint filed by Shri G.B. Wakle, Inspector of Customs, Narcotics Cell, Customs Preventive Collectorate, Mumbai. The case of the complainant, as appearing from the complaint (Exhibit1), may, in brief, be stated as under. That, on 18th October, 2001, the officers of the Narcotics Cell of the Customs Preventive Collectorate, Mumbai, received an information to the effect that; "One Mr. Satish, a drug trafficker, is dealing in purchase and sale of Charas, called Hashish, a Narcotic Drug. Today i.e. on 18th October, 2001 at about 16:30 hrs., he is likely to deliver about 3 kgs. of Hashish to his customer at Band Stand in the garden opposite Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchanama and the signatures of the Panchas were obtained on the Panchanama as well as on the packets containing the samples. The statement of the Accused No.1 was recorded under the provisions of Section 67 of the NDPS Act, wherein he, inter alia, disclosed that what was found with him was Charas and, that, the said Charas was given to him by Suresh (Accused No.2); and, that, the said Suresh (Accused No.2) was going to meet him near Shivaji Fish Market at about 7:30 p.m. to 8:00 p.m. on the same day. Pursuant to the said statement, the officers took the Accused No.1 to Shivaji Fish Market and on the Accused No.1 pointing out the Accused No.2, the Accused No.2 was also apprehended. The Accused No.2 admitted having delivered Charas to the Accused No.1 and, that, he had been waiting for Accused No.1 for the purpose of receiving the payment for the said Charas. The Accused No.1 as well as the Accused No.2 were brought to the office of the Narcotics Cell and the further statement of the Accused No.1 was recorded. The statement of Accused No.2 was recorded, wherein he, inter alia, stated that the said Charas had been received by him from one Prem Sahani alias Tadipar (the Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered was only from the Accused No.1. The case against the Accused Nos.2, 3 and 4 is, therefore, based only on their own statements recorded under the provisions of Section 67 of the NDPS Act, which are said to be confessional in nature, and on the statements made by the coaccused under the same provisions implicating themselves and the coaccused. 8. As the Appellants were in jail and undefended, they were given legal aid. Smt. B.P. Jakhade, the learned Advocate for the Appellant in Criminal Appeal No.393 of 2005, Shri Ganesh Gole, the learned Advocate for the Appellant in Criminal Appeal No.326 of 2007 and Shri Arfan Sait, the learned Advocate for the Appellant in Criminal Appeal Nos.957 of 2005 and 71 of 2006, were appointed from the Legal Aid Panel to prosecute the Appeals. 9. I have heard Smt. B.P. Jakhade, the Advocate for the Appellant in Criminal Appeal No.393 of 2005, Shri Ganesh Gole, the learned Advocate for the Appellant in Criminal Appeal No.326 of 2007 and Shri Arfan Sait, the learned Advocate for the Appellant in Criminal Appeal Nos.957 of 2005 and 71 of 2006. I have also heard Smt. V.R. Bhosale, the learned APP for the RespondentState, and Smt. A.A. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Prem Sahani under the provisions of Section 67 of the NDPS Act (Exhibit-44). The fifth witness Dharmendrasingh Dayanand, a preventive officer attached to the Narcotics Cell at the material time, was also a member of the team that had laid a trap and apprehended the Accused No.1. He is the one in whose presence the search of the Accused No.1Satish was taken. He had also gone to Shivaji Fish Market and was a member of the team that had apprehended the Accused No.2Suresh. On the instructions of Superintendent Kohak, he had also gone to Goregaon along with the Accused No.2 and was a member of the team that had apprehended the Accused No.3Prem Sahani and Accused No.4Degreeprasad. He is the one who had recorded the statement of the Accused No.4 under the provisions of Section 67 of the NDPS Act (Exhibit-48). The sixth witness Umeshwar Nath Sinha is the Chemical Examiner, who had examined and analyzed the samples received by him on 19th October, 2001. The seventh witness E.R. Narayanan is also an Inspector attached to the Narcotics Cell of Customs at the material time. He was also a member of the team that had laid the trap and apprehended the Accused No.1Satish. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others proceeded towards the spot i. e. towards Girgaon Chowpatty. The Panchas were brought by Koppikar (PW2). It also appears that some of the officers including Mr. Shahasane (PW8) were waiting in the garden and the others were waiting outside the garden. The Accused No.1Satish was actually inercepted by Shahasane (PW8). Shahasane (PW8), complainant Wakle (PW1) and Koppikar (PW2) were actually present inside the garden. Shaikh (PW3), Chauhan (PW4), Dharmendra Singh (PW5), Narayanan (PW7) were standing outside the garden. 16. The evidence of Shahasane (PW8), complainant Wakle (PW1) and Koppikar (PW2), therefore, needs to be scrutinized properly with respect to the alleged search and recovery of the Charas from the Accused No.1Satish. 17. In his evidence, Wakle (PW1) - the complainant - stated that he along with Shahasane (PW8) and others had been waiting in the garden opposite Bombay Garage, Chowpatty and, that, at about 4:45 p.m. Shahasane (PW8) intercepted one person who was wearing a yellow shirt and black pant; and, that, on being questioned by Mr. Shahasane (PW8), that person gave his name as Satish Gajanan Khadpe (i.e. the Accused No. 1). According to Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is thereafter that the Accused No.1 was informed about the information which the officers from the Narcotics Cell were having against him and, that, the officers told him that they wanted to search his bag for Narcotics, 'to which the Accused No.1 agreed'. It is thereafter that, that the Accused No.1 was made aware of his right to be searched by and/or before a Gazetted Officer or a Magistrate, as contemplated under Section 50 of the NDPS Act. The claim of this witness is that the Accused No.1 declined the said offer and, that, he did not want any Magistrate or Gazetted Officer for the search. 20. I have carefully considered the evidence of these witnesses who are mainly concerned with the seizure and recovery of the Charas from the Accused No.1. 21. Since it is primarily on the basis of the evidence of the officers from the Narcotics Cell that a conclusion regarding the fact of recovery and seizure of Charas from the possession of Accused No.1 is required to be drawn, their evidence needs to be subjected to very careful scrutiny. It must be kept in mind that they all being officers from the Narcotics Cell and members of the raiding party, are bound to concur on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be recovered from the bag that was being carried by an accused. Since no decision of the Apex Court taking a contrary view in this respect has been pointed out, one has to proceed on the footing that in the present case since the contraband was found after taking search of the bag, which the Accused No.1 was carrying, the provisions of Section 50 of the NDPS Act had no application. Consequently, the failure to comply with the said provisions would not be fatal for the prosecution in the instant case. 23. It may, however, be observed that the conclusion of the trial Court that the provisions of Section 50 of the NDPS Act had been satisfactorily complied with does not appear to be correct to me. 24. I shall now examine whether the evidence of recovery and seizure of Charas from the Accused No.1 inspires confidence. After carefully considering the entire evidence on this aspect, I find that there are a number of infirmities in the prosecution evidence. 25. Though in this case, the failure to comply with the provisions of Section 50 of the NDPS Act has to be held as not fatal to the case of the prosecution, the aspect that though the Investigating Agency proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was taken has not only not being stated, but it is otherwise also obvious from the fact that nothing except the said Charas, which was found with him, is said to have been recovered from the Accused No.1. It is quite unlikely that a person would not carry even the normal articles such as some cash, a wallet, handkerchief, comb etc. with him. If the officers are keeping silent with respect to the aspect of personal search and are not coming up with any claim that his personal search was taken and, that, nothing was found with the Accused No.1, their version, being quite artificial and unbelievable, can immediately be doubted. 28. Interestingly, even the other accused, who were supposedly arrested on the basis of the information disclosed by the other accused, were also not searched. This is rather queer, because nothing was found with the other accused. It may be recalled that they have been implicated only on the basis of the confessional statements made by the coaccused and their own confessional statements. Though I shall deal with that aspect subsequently, what needs to be observed in the present context is that, that the officers of Narcotics Cell should not find it n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed to sell the said Charas, get money and then pay the said amount of Rs.20,000/to the Accused No.2. The said statement also mentions that it has been written by the Accused No.1 himself and, that, nobody had forced him in any manner to write the same. 32. It would be appropriate at this stage to discuss the evidence against the Accused Nos.2, 3 and 4 also, as the same consists, as aforesaid, of only their own statements recorded under Section 67 of the NDPS Act and the statements of the coaccused recorded under the same provisions. Since some features of the confessional statements of all the accused are common, such a course would avoid repetition of the discussion. 33. The statement of Suresh (Accused No.2) has been recorded by Shaikh (PW3). The version of Shaikh (PW3) is that the Accused No.2 was produced before him and Superintendent Shahasane (PW8) asked this officer that he had to record the statement of the Accused No.2. This witness, therefore, issued a summons, as contemplated under Section 67 of the NDPS Act, to the said Accused No.2 and recorded his statement (Exhibit41). That, the Accused No.2 stated before this witness that the Charas, which he had g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Accused No.3 was to give him Rs.8,000/. 36. A number of contentions have been raised by the learned Counsel for the accused persons with respect to the admissibility and evidentiary value of these confessional statements. Mr. Arfan Sait, the learned Advocate for the Accused Nos.3 and 4, submitted that such confessions cannot be called to be voluntary and, that, at any rate, in the present case it is not possible to accept that any of the said confessions allegedly made by the accused persons were voluntary. He further submitted that the confessions of the accused persons cannot be corroborated by the confessions of the coaccused, in as much as, it would not be 'an independent corroboration'. He has relied upon a number of authoritative pronouncements of the Supreme Court of India in support of the contentions advanced by him. 37. A reference to some of them would be useful. In the case of Francis Stanly @ Stalin vs. Intelligence Officer, Narcotic Control Bureau, Thiruvanathapuram, reported in (2006) 13 SCC 210, the Supreme Court of India quoted from its previous judgment in the case of Chonampara Chellappan vs. State of Kerala, reported in SCC 314, as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 25 of the Evidence Act. When there is no bar, a confession made by an accused voluntarily is evidence against him of the facts stated in the confession. However, Section 24 of the Evidence Act provides that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It is a positive rule of Criminal Law that no statement made by an accused is admissible against him unless it is shown, by the prosecution, to have been a voluntary statement. There is no onus upon the accused to prove that he did not voluntarily make a confession, which he is alleged to have made. It is for the prosecution to satisfy the Court that it was genuine, and freely and voluntarily made. The question whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or things has actually followed in any of these summonses. Section 67 of the NDPS Act empowers an officer authorized in that behalf to do the following: "(a).call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b).require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c).examine any person acquainted with the facts and circumstances of the case." 44. Apparently, the summonses in this case were issued under the provisions of Clause (b) of Section 67 of the NDPS Act, without specifying what documents or things were required to be produced. However, when the accused 'appeared', they were not required to produce anything, but, instead, their statements were recorded. All this is ridiculous and exposes the prosecution, instead of making it appear that the confessions were voluntary and pursuant to the summonses issued. 45. Even otherwise, the statements at Exhibits 37, 40, 43 and 47 are in question and answer form. If a statement has been written by an accused in his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the statement came to be recorded, indicates that a bogus impression about what actually happened is attempted to be created by the Investigating Agency. Additionally, the fact of making the Accused No.4 scribe the statement supposedly made by the Accused No.3 indicates at least the Accused No.4 to be under some pressure. Considering the entire circumstances in which the statements came to be recorded, it seems difficult to hold that they were voluntarily made. 48. While assessing or judging the reliability of a particular piece of evidence, in any case, the entire case of the prosecution and all the relevant pieces of evidence must be considered together. The evidence adduced in a case should be considered as a whole particularly when different pieces of evidence are intricately connected with one another in some way or the other. In assessing the evidence, the sincerity and honesty, with which the investigation appears to have been carried out in a given case, would be a vital factor. There are some strange features of the present case. The first one, as discussed earlier, is that no personal search of any of the accused was taken. This is quite unusual particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter is that the Charas is said to be of value of Rs.96,000/. The question as to who would give it to the Accused No.4 for less than Rs.8,000/, in as much as, the Accused No.4 had given it to the Accused No.3 in return for Rs.8,000/, which were also to be paid subsequently, does not seem to have bothered the Investigating Agency, so as to carry out further investigations. Why the accused persons instead of making profits were bent on selling the Charas at a much lower rate is not clear and this also creates a doubt about the prosecution version. 51. A perusal of the impugned judgment shows that the learned Special Judge did not address himself to the question as to whether the evidence adduced by the prosecution was reliable. He placed emphasis on the legal position that a conviction can be based only on the testimony of the officers of the Narcotics Cell and without independent corroboration from the Panch witnesses. The legal position, as stated by the trial Judge, is correct, but what the learned Judge should have considered is whether the evidence of the officers of the Narcotics Cell was such so as to inspire confidence about the truth of what they were stating, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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