GIRISH RAGHUNATH MEHTA Vs. INSPECTOR OF CUSTOMS & ANR

Tags NDPS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1020 - 1021 of 2009, Judgment Date: Sep 07, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA
criminal APPELLATE JURISDICTION

criminal APPEAL NOs. 1020 - 1021 OF 2009

girish raghunath mehta …APPELLANT

VERSUS

inspector of customs
and another ...RESPONDENTs

J U D G M E N T

ADARSH KUMAR GOEL, J

These appeals have been preferred by the appellant against his conviction
under Section 15 read with Section 8(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the Act”) and sentence to
undergo rigorous imprisonment for four years and to pay fine of Rs.20,000/-
, to further undergo rigorous imprisonment for six months, in default of
payment of fine, for illegal sale of 30 Kgs. of poppy straw to the co-
accused- A-2, who did not have valid licence as per the Maharashtra NDPS
Rules, 1985.

2. Case of the prosecution is that the Inspector of Customs, NCCP
Customs, Mumbai received intelligence information on 26th February, 2004
that the appellant was selling crushed opium poppy straw without any bills
on cash basis from his premises at 6, Pravin Chambers, Keshvji Naik Road,
Mumbai. Co-accused- Karim Patel was to purchase 30 kgs. of poppy straw. A
raid was organized and Karim Patel was apprehended with 30 Kgs. of poppy
straw. The raid was conducted by PW1- Bhaskar Shetty, Inspector of
Customs, along with others including PW5- Canute Menezes. The said
accused stated that he had purchased the poppy straw without any bill on
cash payment of Rs.5400/-. On search of the premises belonging to the
appellant, some documents were recovered. Appellant was found in the shop
and stated that he was proprietor and a lady present there was the manager
of the firm. Co-accused- Karim Patel, who was also brought by the
raiding party with it, opened the bag which had colored powder in a
polythene bag. A small quantity was tested on the Field Testing Kit and
result was positive for the presence of opium. The powder was weighed and
found to be 30 Kgs. Three samples of 24 grams each were collected and
sealed. Remaining powder was sealed and kept in the same bag. The label
with signatures of panchas and the investigating officer PW1- Bhaskar
Shetty was affixed on the bag. Co-accused- Karim Patel identified the
appellant as the person who had sold the powder to him without bill on cash
payment. It is not relevant to mention about the rest of stock of opium
kept in the shop and thereafter recovery of cash amount from the house of
the appellant as conviction of the appellant has been upheld only for the
charge mentioned earlier. Co-accused- Karim Patel also stated that he had
purchased poppy straw powder on several occasions from the appellant and
sold the same.

3. Statement of the appellant was recorded under Section 67 of the Act
on 27th February, 2004 to the effect that he had sold 30 Kgs. powder to A-2
without receipt and without medical prescription. A-2 did not have valid
permit. After completion of investigation, both the accused were sent up
for trial.

4. The prosecution examined 11 witnesses which included investigating
officer who effected recovery of the contraband, Superintendent of Customs
who received information, Assistant Chemical Examiner, the landlord of the
premises in possession of the appellant as a licensee/ tenant and the PSI
of the State Excise.

5. The trial court convicted and sentenced the appellant not only for
the offence mentioned above but also for illegal possession of commercial
quantity of poppy straw powder.

6. On appeal, the High Court partly allowed the appeal, quashed and set
aside the conviction and sentence for illegal possession of commercial
quantity of poppy straw powder but upheld the conviction and sentence for
illegal sale transaction of 30 kgs. of poppy straw powder. The High Court
also upheld the conviction of co-accused for abetment of the said offence
by purchasing 30 kgs. of poppy straw powder from the appellant without any
valid licence and permit. The co-accused has not preferred any appeal as
stated by the learned counsel. The appellant has undergone the sentence
during pendency of the proceedings.

7. Learned counsel for the appellant has taken the Court through the
evidence on record and submitted that conviction and sentence awarded to
the appellant was unsustainable. There are discrepancies in recording of
prior information, resulting in violation of mandatory requirement of
Section 42 of the Act. Reference was made to intelligence note, Ex.-47,
and statement of PW4 to submit that information was received one or two
days prior to 26th February, 2004 during investigation of an earlier case
while it was recorded only on 26th February, 2004 and not immediately.
There are contradictions in time and manner of recording of information,
Ex.18, while there is another note which is contradictory. Reliance has
been placed on Abdul Rashid Ibrahim Mansuri v. State of Gujarat[1], State
of Rajasthan v. Jag Raj Singh[2] and Sukhdev Singh v. State of Haryana[3].
It was further submitted that the gunny bag produced in Court did not
carry the label and the signatures. The same could not be linked to the
appellant. PW2 was unable to say whether the bag produced had seal or
label or not. He also submitted that record of the samples was not
maintained. Panchas were not examined. Same Panchas were used for several
occasions. He also submitted that the statement of the accused under
Section 67 amounted to confession before police and was not admissible as
held in Tofan Singh v. State of Tamil Nadu[4], Union of India v. Bal
Mukund[5], Raju Premji v. Customs NER Shillong Unit[6] and Noor Aga v.
State of Punjab[7]. Even if the statement of the appellant under Section
67 was admissible, it was a weak piece of evidence and had only
corroborative value. No independent witness was joined while recording the
statement. The appellant was in custody at the time of recording the
statement. The statement was not voluntary. Its contents were not read
over to him. A-2 was also in custody and his statement was also not
voluntary. Statement of co-accused could not be taken as substantive
evidence. The same could not be relied upon in view of the decision in
Bal Mukund and Raju Premji (supra).

8. Learned counsel for the State supports the conviction and sentence of
the appellant. He submitted that concurrent finding of the courts below is
based on evidence and the same is not liable to be disturbed in an appeal
under Article 136 of the Constitution. It was pointed out that the
contentions advanced by the learned counsel for the appellant are not shown
to have been raised before the High Court. He next submitted that Section
42 applies only when recovery is to be effected from a building, conveyance
or enclosed place. Present case is covered by Section 43 as recovery is
from a public place. As regards the plea of absence of label, neither any
question was raised at the time of production of the bag nor the fact of
recovery of the contraband from co-accused is in dispute. Recovery was
proved by independent direct evidence. Co-accused from whom recovery was
effected has not even challenged his conviction. As regards the record of
samples, it is pointed out that the evidence of the chemical examiner-PW8
is categoric that all the samples were in sealed condition. The appellant
never retracted his statement under Section 67 to the effect that the
contraband recovered from co-accused was sold by the appellant and that
the said co-accused had no licence to purchase the contraband and thereby
the appellant contravened the conditions of his licence. He was not in
custody when his statement was recorded as is clear from the statement of
PW2- Gerard Joseph, who recorded the statement.

9. After due consideration, we do not find any merit in the submissions
on behalf of the appellant. Both the courts below have concurrently held
that the appellant was found to have sold the contraband to the co-accused
without any licence. The said finding, inter alia, is based on the
evidence of PW1- Bhaskar Shetty, Inspector of Customs who seized the
contraband from the co-accused- Karim Patel. Further, the evidence in the
form of statement of the appellant himself (Ex.-20) under Section 67 of the
Act before his arrest clearly shows that the appellant had sold the
contraband to the co-accused- Karim Patel who did not have any licence to
purchase thereof. Even otherwise, the connection of contraband with the
appellant was clearly established after which the burden was on appellant
to show that he had effected sale to an authorized person. Recovery from
the co-accused was from an open place to which Section 42 of the Act is not
attracted. At the time of production of gunny bag no objection was raised
on behalf of the appellant that the bag did not carry any label or sign of
identity. Thus, the absence of label and sign of identity could not be
presumed. The samples were duly tested by the chemical analyzer and were
found to be intact. There is, thus, no serious infirmity in the findings
recorded by the courts below in convicting and sentencing the appellant.

10. The contention raised on behalf of the appellant on the basis
of judgments of this Court in Abdul Rashid Ibrahim Mansuri, Jag Raj Singh
and Sukhdev Singh (supra) cannot be accepted. As already noticed, Section
42 of the Act has no application to the fact situation of the present case.
The said section applies when the contraband recovered from a building,
conveyance or enclosed place. Where recovery is from a public place,
Section 43 applies. This Court reconciled the view taken in Abdul Rashid
Ibrahim Mansuri (supra) and Sajan Abraham v. State of Kerala[8] in larger
bench judgment in Sukdev Singh (supra). It was held that in view of
technological advancements, it may not be possible to record information as
per the requirement of Section 42. Strict compliance by the investigating
agency should not be required in an emergency situation so as to avoid
misuse by wrongdoers/ offenders/ drug peddlers[9]. Whether there is
adequate substantial compliance is a question of fact in each case. Apart
from the finding that present case is governed by Section 43, there is no
ground to interfere with the concurrent finding of the Courts below that
there is adequate compliance of Section 43 of the Act.
11. Similarly, the contention on the basis of the judgments in Tofan
Singh, Raju Premji and Noor Aga (supra) also cannot be accepted. There
can be no doubt that the Court has to satisfy itself that the statement
under Section 67 was made voluntarily and at a time when the person
making such statement had not been made an accused. Whether the statement
is voluntary and free from encumbrance has to be judged from the facts and
circumstances of each case. In Tofan Singh (supra), the question whether
the investigating officer investigating the matter under the Act is a
police officer and whether the statement recorded by the investigating
officer under Section 67 of the Act can be treated as a confessional
statement has been referred to the larger Bench. It is not necessary to go
into this aspect in the present case as there is adequate evidence to prove
the sale of the contraband by the appellant for which co-accused has been
convicted and sentenced. The prosecution version is based not only on the
statement under Section 67 but also on the evidence of recovery of the
contraband immediately after sale and the circumstances showing that the
contraband was sold by the appellant to the co-accused, without any
authorization. Thus, we do not find any ground to interfere with the
conviction and sentence awarded to the appellant.

12. The appeals are dismissed.

………………………………………………J.
( c. nagappan )

………………………………………………J.
( ADARSH KUMAR GOEL )
New Delhi;
september 07, 2016.

ITEM NO.1A-For JUDGMENT COURT NO.8 SECTION IIA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1020-1021/2009

GIRISH RAGHUNATH MEHTA Appellant(s)

VERSUS

INSPECTOR OF CUSTOMS & ANR. Respondent(s)

Date : 07/09/2016 These appeals were called on for pronouncement of
JUDGMENT today.

For Appellant(s)
Mr. Purushottam Sharma Tripathi,Adv.

For Respondent(s)
Mr. Nishant Ramakantrao Katneshwarkar,Adv.

Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the
Bench comprising Hon'ble Mr. Justice C. Nagappan and His Lordship.
The appeals are dismissed in terms of the Signed Reportable Judgment.
Pending application(s), if any, stand(s) disposed of.

(Signed Reportable judgment is placed on the file)

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[1] [2] (2000) 2 SCC 513
[3] [4] (2016) 6 SCALE 32
[5] [6] (2013) 2 SCC 212
[7] [8] (2013) 16 SCC 31
[9] [10] (2009) 12 SCC 161
[11] [12] (2009) 16 SCC 496
[13] [14] (2008) 16 SCC 417
[15] [16] (2001) 6 SCC 692
[17] [18] (2009) 8 SCC 539 - Para 34

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