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TMI Blog2008 (10) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dissatisfied with the impugned judgment and order recording conviction for the aforesaid offences, the original accused Gulam Mohammad Malik preferred Criminal Appeal No. 683 of 2004 challenging the legality and validity of the impugned judgment. The Criminal Appeal No. 1319 of 2004 came to be preferred by the State of Gujarat under section 377 of the Code of Criminal Procedure [for short 'Cr. P.C.'] for enhancement of sentence. As both these appeals arise out of the common judgment and order rendered by the Ld. Trial Judge and common arguments were advanced on behalf of both the parties in connection with both these appeals, these appeals are being disposed of by the common judgment. 2. The prosecution case, in nutshell, is as under :2.1. Mr. Shailendra Lodha, Intelligence Officer, Narcotic Control Bureau, Ahmedabad [for short 'NCB'], received a secret information that, one truck bearing Registration No. JK02G795 is carrying on huge quantity of Charas [Hashish] secreted in the driver's cabin. The said truck is destined for Mumbai. The said truck will pass from Shamlaji border at around 7.00 pm to 8.00 pm on 12/1/2002. This truck originated from Kashmir a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was sent to Mumbai. It was revealed that the present appellant accused, who was involved in another offence in Mumbai, was to receive the Charas in Mumbai from the truck. By transfer warrant, the accused was brought to NCB office, Ahmedabad. His statement under section 67 of the NDPS Act was recorded. The statement of witnesses who were members of the raiding party were recorded and after completion of the investigation, Mr. Shailendra Lodha, Intelligence Officer, NCB Ahmedabad, filed complaint against the accused Gulam Mohammad in the Court of the Sessions Judge, Sabarkantha at Himatnagar, which was registered as NDPS Case No. 1 of 2002. 2.2. The Ld. Trial Judge framed charge against the accused at exh. 12. Since the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After the completion of the evidence, further statement of the accused under section 313 of the Cr. P.C was recorded. In his further statement, generally the accused denied all the allegations levelled against him and further submitted that he was falsely implicated in this case. 2.3. After appreciating the evidence on record and after hearing arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elephone, but the fact is that from 14th morning the accused was arrested in connection with the offence in Mumbai and was in custody of NCB Mumbai. Therefore, he did not use his phone, but someone else used the phone. No investigation is carried out on that line. Learned advocate Ms. Ahuja submitted that, however, it is true that the accused did not retract his confessional statement, but it was not safe to convict the accused for such serious offence solely relying upon the confessional statement. Nothing corroborative evidence was collected by the prosecution to support the confessional statement. That only on the basis of presumption and assumption the accused came to be implicated in this case. That no investigation was carried out even to know as to whether whatever stated by the accused in his so called confessional statement was true or not. Therefore, it is submitted that the appeal may be allowed and the impugned judgment and order rendered by the Ld. Trial Judge be set aside and appellant accused be acquitted. 3.1. In connection with the State appeal for enhancement of sentence bearing Criminal Appeal No. 1319/2004, learned advocate Ms. Ahuja submitted that as the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions made on behalf of both the parties and considering the record and proceedings of the case, it clearly transpires that the entire case of the prosecution centers round the statement of the accused recorded u/S. 67 of the NDPS Act produced at exh. 55. The statement appears to have been recorded on 2/3/2002 by the Zonal Director, NCB, Ahmedabad Mr. Pawansinh Tomar, whose evidence is recorded at exh. 50. Considering the deposition of Mr. Pawansinh Tomar exh. 50 about the confessional statement exh. 55, he stated that on the basis of the visiting card which was recovered from the truck, investigation was conducted. In the card telephone numbers were mentioned. The telephone numbers were of Mumbai. That in the card 2 names were written like Farooq and Gulam Mohammad. Before the name of Gulam Mohammad, 12 packets was written. The information which was collected from the visiting card, was sent by fax to the Bombay office of NCB. On 15/2/2002 Bombay office sent information that the present accused Gulam Mohammad, who was arrested in connection with one offence committed in Bombay and in said case 150 Kgs of Charas was seized from this accused. Thereupon, by virtue of transfer warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to see whether involvement of the accused is justified or not. There is nothing that the NCB officers have finally dropped taking any action against the persons named in the statement exh. 55. In the statement it is clearly stated that the Charas which was seized by the NCB Officers was to be supplied to the accused and he was to get 12 packets of Charas, but the remaining quantity of Charas was to be distributed in Mumbai as per his instruction. Thus, the nexus between the accused and Charas is established. 5.1. Learned advocate Ms. Ahuja submitted that it is alleged that on 1415/ 1/2002, the accused contacted his counterpart in Jammu and Kashmir on telephone, but as a matter of fact, the accused was arrested right from 14th morning in connection with the offence committed in Mumbai and he was in custody and therefore, could not have used his telephone/mobile phone while in custody. It is submitted that during the course of the trial, the concerned Court of Mumbai had not delivered the judgment and therefore the accused could not raise this defence during trial but now the Mumbai Court has delivered its judgment. Now considering this argument, the fact reveals from the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his own and subsequently only the signature of the accused was obtained in the statement. 8. Further more, considering the deposition of Zonal Director, Ahmedabad, witness Mr. Pawansinh Tomar, exh. 50, it clearly transpires that he was empowered officer empowered under sec. 42 of the NDPS Act for the purpose of recording statement u/s. 67 of the NDPS Act. Considering his entire cross-examination on behalf of the accused, nothing emerges that he had no authority to record the statement. Even the empowerment of the concerned NCB Officer to record the statement u/s. 67 of the NDPS Act was not seriously challenged by the accused. Therefore, the statement was recorded by the empowered officer. 9. The prosecution examine Panch witness Naresh Mohandas exh. 25 in connection with the seizure panchnama exh. 26. The panch witness fully supported the entire contents of panchnama. It is true that the full details contained in the visiting card are not reproduced in the panchnama, but the seizure of the visiting card is clearly mentioned in the panchnama. Therefore, merely because the entire contents of the visiting card are not reproduced in the panchnama, thereby the evidence regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in section 42 of the NDPS Act have not been fully and truly complied with, in the sense that the NCB Officer Monish Harbanslal Bhalla though received the secret information and according to him, the information was reduced into writing by him and the same was forwarded to his immediate superior witness Pawansinh Tomar, Zonal Director, NCB Ahmedabad, but the sealed cover in which the information was said to have been forwarded by NCB Officer Mr. Bhalla to his superior officer Mr. Tomar, has not been produced. However, considering subsection (2) of section 42 of the NDPS Act, the requirement is to send the copy containing the secret information reduced in writing to the superior officer within 72 hours. Considering the deposition of witness Monish Bhalla exh. 48, he stated that he had received secret information regarding the truck which he reduced into writing and was forwarded to his superior officer Zonal Director Mr. Pawansinh Tomar. Considering the deposition of Mr. Pawansinh Tomar exch. 50, he admitted that he received the letter in a sealed cover from Intelligence Officer Mr. Bhalla containing the secret information. Office copy of said letter is produced at exh. 49 and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in the Cr. P.C regarding a warrant triable case arising from private complaint. In this respect, considering the record of the case, it transpires that at exh. 2 an application came to be filed by the complainant containing the details referred in the complaint pertaining to framing of the charge. The Ld. Trial Judge passed detailed order dated 17/12/2002 below the application exh. 2 wherein the submissions made on behalf of the accused to the effect that before framing charge precharge evidence may be recorded and thereafter, if primafacie case is made out by the complainant, then only charge may be framed, were considered and such submissions made on behalf of the accused came to be rejected by the Ld. Trial Judge by order dated 17/12/2002 by referring relevant provisions contained in the NDPS Act and came to the conclusion that the charge to be framed against the accused. Ld. Advocate Ms. Ahuja for the appellant accused submitted that said order dated 17/12/2002 was not challenged before the higher forum by the accused. Therefore, said order dated 17/12/2002 has attained finality. Moreover, nothing is shown to us that in the instant case, the defence of the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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