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2008 Supreme(Guj) 447
2009 (2) GCD 1224 (Guj) (DB)
Hon’ble Mr. Justice C.K. Buch &
Hon’ble Mr. Justice D.N. Patel
Mangilal Hiraram Vishnoi & Ors. [Ahmedabad]
Versus
State of Gujarat & Ors.
Criminal Appeal No. 769 of 2000—Decided on 17/12/2008
Appearance :
Mr. J.M. Panchal, for the Appellant N. 1.
Mr. Rajesh M. Agrawal, forthe Appellants No. 1-2.
Mr. Sunil M. Agrawal, for the Appellants No. 1 - 2.
Mr. K.J. Panchal, for the Appellant No. 1.
Mr. H.L. Jani, Addl.Public Prosecutor for the Opponent No. 1.
Mr. Harin P. Raval, for the Opponent No. 2.
Point in Issue :
Whether accused appellants have been rightly convicted under the Act for possession of heroin?
Headnote:Head Note :
Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) — Sections 2(viiia), 2(xxiiia), 8(c), 9(a), 21, 21(c), 25(A) read with 29, 35, 36(B), 41, 42, 50, 67, 67(a) — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 200, 374 read with 386 and 374(2) — Customs Act, 1962 (Central Act 52 of 1962) — Section 108 — Heroin — Contraband article — Recovery of — Conviction — Appreciation of evidence — Finding of — Sustainability — Prosecution case is that Intelligence Officer (I.O.) of Department of Revenue Intelligence (DRI) on receiving information that a package containing narcotic drugs would be taken delivery of from Diamond Transport Corporation (D.T. Corporation) Ahd. kept surveillance over it’s premises — While I.O. was searching the premises of D.T. Corporation and had found narcotic drug the white heroin in packets accused persons, one after the other came to D.T. Corporation to claim the packets on basis of relevant documents in their possession — I.O. made complete search of the premises of D.T. Corporation and accused and recorded the statements of the accused and witnesses of recovery etc. and presented challan against the accused appellant under the Act of 1985 and trial Court after trial convicted them — Court examined the documents, statement of witnesses and accused closely and held that it clearly comes out that both the accused appellant had the knowledge that they were entrusted the work that delivery of heroin sent from Mumbai to Ahd. is taken and the same is to be delivered to person indicated by them — No material contradiction or conflict in the evidence of the officers examined by the prosecution more particularly officers of DRI are emerging which can lead the Court to infer that same go to merit of the case — How parcel was opened, how material muddamal heroin was weighed have also come on record — Court also examined the documents necessary for taking delivery of heroin packets from D.T. Corporation and recovered from possession of accused — Court opined that recovery of these documents from possession of accused appellants clearly shows the involvement of both the accused and their mental State in illicit inter-State trafficking of prohibited narcotic drug muddamal heroin — Court held that trial Court has committed no error in appreciating evidence and accused are rightly held guilty of the charge of offence under the Act — Court also observed the considering the facts and circumstances of the case it is not a fit case for even reducing the sentence awarded by trial Court.
Held :
It has come in evidence that accused No. 1 was aware that the package for which he was going to claim contained Heroin and accused No. 2 was also aware that something objectionable was there in that package and therefore only, he was offered Rs. 1,000/-. As the accused No. 1 had arrived at Ahmedabad on 04.07.1998 as per the evidence led by prosecution, it was not possible for the officers of DRI to recover railway or bus tickets from accused No. 1. So, both the persons having clear knowledge about the objectionable material had attempted one after another to have possession of that objectionable article. It is possible to infer from the set of evidence that accused persons were aware that they were entrusted the work to see that delivery of Heroin sent from Mumbai to Ahmedabad is taken and the same is delivered to person or persons indicated to them. [Para 8]
No material contradictions or conflict in the evidence of the officers examined by the prosecution, more particularly, officers of DRI are emerging which can lead this Court to infer that the conflict of evidence or contradictions are of serious nature and the same go to the merits of the case. How parcel was opened, how material, more particularly, muddamal Heroin was weighed, what type of instructions were used in weighing samples and the entire muddamal Heroin etc. has come on record through the depositions of P.W. 9 and P.W. 10. [Para 21]
Statements of P.W. 2 Devji Khania and Prakash Mayakal P.W. 5 are recorded under Section 67[a] of the said Act, because, these two witnesses were able to give necessary information to the DRI officers and the documents recovered from Diamond Transport Corporation’s office including zerox copy of lorry receipt and other documents including consignor’s and consignee’s copy from accused No. 2 can be said to be recovery made under Clause [b] of Section 67. How these documents were there in custody of accused Nos. 1 and 2 respectively is crucial question and the same has been rightly answered by the learned trial Judge. It is rightly submitted by Mr. Raval that these two documents show involvement of both the accused and their mental state in illicit inter-state trafficking of prohibited narcotic drug muddamal Heroin. [Para 22]
Admissions made by the accused persons in statements recorded under Section 67 are not only basis for recording conviction. They have been used carefully as corroborative piece of evidence and their statements recorded under Section 67 of the said Act also have been tested by cross-checking with other set of evidence. All documents have been tendered and received in evidence according to law. It is not possible for us to observe that statements of the accused recorded under Section 67 of the said Act were inadmissible and the learned trial Judge was not legally authorized to consider those statements. [Para 27]
Law Laid Down :
Court is supposed to assign good and sound reasons while dealing with a criminal appeal.
Case Law Analysis :
Alok Nath vs. State of West Bengal, 2006 (13) Scale 467 [Para 28];; Babuhai Udesinh Parmar vs. State of Gujarat, 2006 (12) SCC 268 [Para 28];; Om Adinath vs. Deputy Director, NCB, Madras, 1999 (6) SCC 1 [Para 28];; Union of India vs. Kuldeep Singh, 2004 (2) SCC 590 [Para 34];; Dhananjoy Chaterjee vs. State of Bengal, 1994 (2) SCC 220 [Para 35];; Ravi vs. State of Rajasthan, 1996 (2) SCC 175 [Para 35];; State of Punjab vs. Prem Sagar & Ors., 2008 (3) SCC 183 [Para 36].—Relied on
Noor Aga vs. State of Punjab and Others, 2008 [3] GLH 43 [Para 28].—Distinguished
Appeal Dismissed
C.K. Buch, J.—Present appeal is filed by the appellants, original accused under Section 36[B] of Narcotic Drugs and Psychotropic Substances Act, 1985 [hereafter to be referred to as the “said Act”] read with Section 374[2] of the Code of Criminal Procedure, 1973 challenging the judgment and order of conviction dated 31.07.2000 rendered by the learned Additional Sessions Judge, Court No. 8 of City Sessions Court, Ahmedabad, in Sessions Case No. 292 of 1998, whereby the appellants-accused have been held guilty of charge of offences punishable under Section 8[c] read with Sections 21 and 29 of the said Act. Under the said judgment and order of conviction, the learned trial Judge has convicted the accused and imposed rigorous imprisonment for 13 years and imposed fine of Rs. 1,50,000/- each for the offence punishable under Section 8[c] read with Sections 21 and 29 of the said Act. Both the accused have been further sentenced to undergo rigorous imprisonment for 13 years and imposed with fine of Rs. 1,50,000/- each for offence punishable under Section 21 read with Section 29 of the said Act. In default of payment of fine for both the above offences, the learned trial Judge has imposed rigorous imprisonment of one year on both the accused.
2. The appellants have challenged the order of conviction and sentence on various grounds mentioned in Para 19 of the memo of appeal alleging that the order of conviction and sentence passed by the learned trial Judge is manifestly erroneous, illegal and the same is violative of principles of appreciation and evaluation of evidence in a criminal trial. Certain mandatory provisions have not been complied with by the investigating agency and the members of the raiding party, and that the accused have been wrongly found linked with the crime. The accused ought to have been acquitted saying that the case of prosecution is highly improbable and that no weightage should be given at least to the statements allegedly recorded under Section 67 of the said Act as a legal piece of evidence. If the statements allegedly recorded under Section 67 of the said Act are taken away from the set of evidence considered by the learned trial Judge, the prosecution case would automatically fail. Each witness examined by the prosecution is a person apparently interested in the result or outcome of the trial. Their evidence was required to be scanned closely and the error committed in evaluating evidence has resulted in conviction of the appellants-accused. On the other hand, Respondent No. 2 [original complainant] - Department of Revenue Intelligence [hereafter to be referred to as “DRI”] has come out with strong resistance against all the grounds agitated by the accused and has submitted that the findings recorded by the learned trial Judge are absolutely legal and there is no element of either perversity or procedural fatal infirmity. Respondent No. 1 - State of Gujarat has supported the stand taken by the Respondent No. 2 DRI. To appreciate the rival contentions before us, it is necessary to state facts emerging from the complaint filed by the Respondent No. 2 as “Statutory Officer” in the Court of City Sessions Judge, Ahmedabad.
3. For the sake of convenience, the parties in this appeal are referred to as in their original position before the trial Court, i.e. appellants as “original accused” and respondents as “complainant” or “DRI”.
4. Merrymel George is a public servant being Intelligence Officer of DRI who filed a complaint acting in discharge of his official duty and therefore, the Court decided to register a case against the accused as Sessions Case on 03.10.1998 without entering into formality contemplated under Section 200 of CrPC. According to the complainant, officers of DRI, Ahmedabad, had received information revealing that a package containing narcotic drug would be taken delivery of from Diamond Transport Corporation, Ahmedabad on 06.07.1998. Therefore, the officers of DRI acting on that informatio
