2008 Supreme(Guj) 362

2009(1) GCD(Guj.) [D.B.] 47
Hon’ble Mr. Justice A. L. Dave &
Hon’ble Mr. Justice J. C. Upadhyay
Gulam Mohammad Malik
Versus
Shailendra Lodha – Intelligence Officer & Anr.
Criminal Appeal No. 683 of 2004 — Decided on 24-10-2008

Whether in the facts and circumstances of the case accused should be acquitted or the punishment awarded is to be enhanced.

Headnote:Head Note :

       (A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec. 20(3) and 29 & 8(C) - Conviction - Contended that except so called confessional statements of the accused recorded under Sec. 67 of the Act, there is no evidence worth the name to connect the accused with the crime - Though confessional statement was not retracted by the accused but it was not safe to convict the accused for such serious offence solely relying upon the confessional statement - No corroborative evidence to support the confessional statement - Held that the confessional statement was not outcome of any threat, duress, coercion or undue influence caused to the accused by concerned officer - In confessional statement personal information about the family members of the accused given which only the accused can provide - Accused can be convicted solely on the basis of a cofessional statement - Appeal dismissed.

       Held :

        The confessional statement was never retracted by the accused. There is nothing on record to come to the conclusion that the confessional statement was outcome of any threat, duress, coercion or undue influence caused to the accused by any NCB Officer. The statement contains certain personal. information regarding the family members of the accused The information is such which only the accused can provide. Under such circumstances, there is no reason to presume that the statement was recorded by the concerned NCB Officer on his own and subsequently only the signature of the accused was obtained in the statement. [Para-7]

       Head Note :

       (B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec. 8(C), 20(B), 29 & 67 - Conviction - Contended that in so called seizure panchnama only stated that one visiting card was seized, but the particulars in visiting card was not recorded in the seizure panchnama - Held that in seizure panchnama seizure of the visiting card is clearly mentioned - It is sufficient.

       Held :

        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 regarding the visiting card and the contents thereof cannot be doubted. [Para-9]

       Head Note :

       (C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec. 8(C), 20(B), 29 & 67 - Conviction - contended that information received was forwarded to superior officer in sealed cover, but sealed cover is not produced - Held that the information received was forwarded immediately to the superior officer - Does not appear any breach in the mandatory provisions.

       Held :

       Considering the deposition of Monish Harbanslal Bhalla exh, 48, he has received the secret information at about 2,45 p.m. and considering the forwarding letter exh, 49, the same was forwarded to his superior officer at 3.00 pm. Thus, soon after the receipt of the information, the same was forwarded to the superior officer. The statutory time limit is 72 hours, but in the instant case, the same was almost immediately forwarded to the superior officer. Therefore, there does not appear any breach in the mandatory provisions contained in section 42 of the NDPS Act. [Para-11]

       Head Note :

       (D) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sec. 8(C), 20(B), 29, 42 & 67 – Conviction – Complainant filed private complaint in the sessions court – Before framing charge the Ld. Trial Judge did not record any evidence for the purpose of framing the Charas & straight way charge was framed thus, proper procedure of trial is not followed – Held that the order regarding framing of charge was not challenged by the accused & it has attained finality – Further defence of the accused was not adversely affected or no prejudice was caused to the accused by the order of framing of charge.

       Held :

       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 accused was adversely affected or that it was prejudiced by virtue of the order passed by the Ld. Trial Judge dated 17/12/2002. The complainant is a public servant. Under such circumstances, when the order dated 17/12/2002 passed by the Ld. Trial Judge has attained finality and the fact that citing relevant provisions under the NDPS Act, said order came to be passed by the Ld. Trial Judge and further the fact that in the instant case, nothing is shown to us that thereby the defence of the accused was any way adversely affected or that the same was jeopardized. [Para-13]

       Head Note :

       (E) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sec. 8(C), 20(B), 29, 42 & 67 – Conviction – Contended that on the packets containing samples of the contra band substance, slips containing signature of the panch, have not been affixed – Further contended that on 14-15/1/2002 the accused had contacted his counter parts in Jammu and Kashmir by telephone, but in fact the accused was arrested from 14th morning in connection with the offence in Mumbai & was in custody of NCB, Mumbai – He did not use his phone – Someone else used the phone – No investigation is carried out on that line – Held that panch witness, celarly deposed that his signature was taken – No mandatory provision regarding sealing and packing of sample is violated – Further held that even in the statement of accused about telephonic talk with his counter part at Jammu and Kashmir is excluded it will not cause any adverse effect on his over all statement under sec. 67.

       Held :

       Now considering this argument, the fact reveals from .the record that the said information about telephonic talk on 14-15/1/2002 was supplied to the NCB Officer by the accused himself in his statement under section 67 of the NDPS Act So this was one of the parts of the information supplied to the concerned officer by the accused, in his above statement Now the question is if this part of the statement is excluded from his statement, then whether the entire statement shall have to be discarded? We are of the considered opinion that even if ‘the statement regarding ‘telephonic talk by the accused with his counterpart at Jammu and Kashmir on 14-15/1/2002 is excluded from the evidence, it will not cause any adverse effect on his overall statement under section 67 of the NDPS Act. [Para-5]

       Considering the deposition of panch witness Naresh Mohandas exh. 25, he clearly deposed that on the outer covers of the packet containing samples and the remaining part of Charas, his signature and signature of 2nd panch Mr. Joseph were taken. Considering the seizure panchnama exh. 26, it is stated that on the outer cover of the packets both the panchas signed and the seals were affixed. It is further stated that the packets were also signed by NCB Officer Ms. Krishna Chobey. Moreover, again as stated above by virtue of the confessional statement exh. 55, the nexus between the contraband Charas seized by the NCB Officers and the accused is clearly established. [Para-12]

       Head Note :

       (F) Criminal Procedure Code, 1973 – Sec. 377 – Enhancement of Conviction – Contended that the sentence awarded by the trial court is to lenient and quite inadequate – Minimum sentence prescribed is imposed – Held that the discretion exercised by the led trial Judge in awarding sentence is not arbitrary – No interference called for.

       Held :

       We do not find that the discretion exercised by the learned trial Judge is an arbitrary exercise of his discretionary power in fixing the quantum of punishment. Under such circumstances, the sentence awarded by the trial Court to the accused to undergo RI for 10 years and to pay fine of Rs. 1 lac and in default to undergo further RI for one year cannot be said to be either too lenient or too harsh. [Para-15]

       Law Laid Down :

       Sole confession statement of the accused can be basis for conviction.