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SUPREME COURT OF INDIA
SANDEEP MEHTA, PRASANNA BHALACHANDRA VARALE, JJ.
Firdoskhan Khurshidkhan – Appellant
Versus
The State of Gujarat and Another – Respondents
Criminal Appeal Nos. 2044, 2045 of 2010
Decided On : 30-04-2024
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 21 read with Section 8 (c) and Sections 29, 50 and 67 – Seizure of Brown Sugar/ Heroin and Diacetyl Morphine – Conviction and sentence – Seizure was not effected during personal search of appellant (A-1) – Contraband was being carried in a polythene bag held by appellant (A-1) in his hand and there was no requirement for Seizure Officer to have acted under provisions of Section 50 of NDPS Act before conducting search and seizure proceedings – Complete chain of evidence required to prove safe custody of samples in a sealed condition has been proved in testimony of three officials of NCB – Link evidence required to prove sanctity of sampling and transmission of samples to Chemical Analyst is also sacrosanct – Search and seizure procedure is free from all doubts – Confessional statement of accused recorded under Section 67 of NDPS Act is not admissible in evidence – Manner in which said statement was recorded leaves much to be desired and creates grave doubt on sanctity thereof – As per case set out in complaint and evidence of NCB officials, team of narcotic officers/officials was divided into two groups – However, it is not clear from evidence of any of four prosecution witnesses as to what was composition of these two groups – No contraband substance was recovered from possession of appellant(A2) – Criminal Appeal filed by appellant (A-1) lacks merit and hereby dismissed – Criminal Appeal preferred by appellant (A-2) allowed – His conviction as recorded by trial Court and affirmed by High Court quashed and set aside and he is acquitted of all charges. (Paras 19, 20, 26, 27, 28, 30 and 33)
Facts of the case:
These two appeals arise out of a common judgment dated 30th November, 2009 rendered by Division Bench of High Court of Gujarat whereby Criminal Appeal Nos. 1865 of 2006 and 1866 of 2006 preferred by appellants respectively were dismissed. By way of said appeals, appellants had assailed judgment dated 6th June, 2006 passed by Additional Sessions Judge, Fast Track Court, Nadiad in Special Case (NDPS) No. 5 of 2003 convicting the appellants for the offences punishable under Section 21 read with Section 8 (c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing them to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh each in default of payment of fine to undergo simple imprisonment for two years.
Findings of Court:
Conviction of Firdoskhan (A-2) as recorded by the trial Court and affirmed by the High Court cannot be sustained and he deserves to be acquitted by giving him the benefit of doubt.
Result : Criminal Appeals partly allowed.
JUDGMENT :
SANDEEP MEHTA, J.
1. These two appeals arise out of a common judgment dated 30th November, 2009 rendered by the Division Bench of the High Court of Gujarat whereby Criminal Appeal Nos. 1865 of 2006 and 1866 of 2006 preferred by the appellants herein i.e. Anwarkhan Jahilkhan Pathan and Firdoskhan Khurshidkhan Pathan, respectively were dismissed. By way of the said appeals, the appellants herein had assailed the judgment dated 6th June, 2006 passed by the learned Additional Sessions Judge, Fast Track Court, Nadiad (hereinafter being referred to as the ‘trial Court’) in Special Case (NDPS) No. 5 of 2003 convicting the appellants for the offences punishable under Section 21 read with Section 8 (c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter being referred to as ‘NDPS Act’) and sentencing them to undergo rigorous imprisonment for ten years and fine of Rs. 1 lakh each in default of payment of fine to undergo simple imprisonment for two years.
Brief facts:
2. Shri Deepak Pareek (PW-2) posted as Intelligence Officer in the Narcotic Control Bureau (hereinafter being referred to as ‘NCB’) Ahmedabad received a secret information at his office in the morning of 30th January, 2003. The informer divulged that two persons would be delivering contraband/illicit substance at the ST Bus Stand, Kheda between 4:30 p.m. and 5:00 p.m. The secret information also contained the description of features of the suspects and the clothes which they would be probably wearing. The information also provided that the contraband substance had been received from one Adilkhan and that the miscreants would be delivering it to a third person. Deepak Pareek (PW-2) jotted down the secret information, translated and converted it into a typewritten script and forwarded a copy thereof to his immediate superior officer.
3. Two panchas i.e. Manubhai (PW-1) and Amit R. Dantani were summoned to the NCB office, Ahmedabad where a preliminary panchnama taking their consent to participate in the proceedings was drawn. Deepak Pareek (PW-2) accompanied with other NCB officials and the panchas proceeded to ST Bus Stand, Kheda. The raiding party was divided into two groups. Upon reaching the bus stand at around 4:30 p.m. they saw two persons, whose description was matching with the secret information, sitting near the public urinals of the bus stand. The officials observed that a bag was being held by one of the two suspects who handed the same over to the other and proceeded towards the exit gate of the bus stand. One group of the raiding team cornered the person who was holding the bag whereas, the second group followed the other person who was seen proceeding towards the exit gate of the bus stand. The first group after disclosing their identity to the suspect who was holding the bag, made enquiry about his identity and he gave out his name to be Anwarkhan (A-1). The second suspect, however, escaped from the spot and could not be apprehended by the group of officials who went in his pursuit. The bag held by Anwarkhan (A-1) was opened and two polythene bags containing suspected contraband material were found therein. The contraband substance was weighed at the bus stand and gross weight of the two polythene bags came out to be 2kg and 30 grams. As the spot where the suspect and the contraband were found was a busy public place, the NCB officers in order to avoid security issues thought it fit to move to the PWD Guest House adjacent to the bus stand for carrying out the seizure, sampling and sealing procedure. Accordingly, the team members along with the panchas, the suspect and the packet of contraband, moved to the PWD Guest House. Three samples were collected from each polythene bag and were sealed under the signatures of the panchas and the Intelligence Officer (PW-2) of the NCB. The second/final part of the panchnama was drawn up and completed at the PWD Guest House, Kheda. Summon under Section 67 of the NDPS Act was issued
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