Omkarnath Kak @ Panditji vs State Of Gujarat &Opponents Cr A/1297/2008 2/100 Judgment

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As all the appeals with Criminal Confirmation Case for death sentence arise from the common judgment and the order passed by the learned Special Judge, they are being considered simultaneously.

2. We may also state that as per the proviso to section 368 of CrPC, no order for confirmation should be made until the appeal preferred is disposed of, before we consider the aspects for confirmation of death sentence, it would be appropriate to consider the appeals and thereafter to consider the Criminal Confirmation Case for death sentence.

3. As per the prosecution case, the information was received on 17.9.2003 by one Shri Vikram Ratnu PW-2, Intelligence Officer, NCB, Ahmedabad, between 9.00pm to 10.00pm, that three persons (one person named Omkarnath Kak @ Panditji, who was bald headed having big mustache with spectacles and fair complex with strong body with another man were coming to deliver a big consignment of charas to some person near Sagar Hotel, Opp. Kalupur Railway Station, Ahmedabad, and the person to receive the delivery was to come in Maruti Zen Car having registration No. GJ-1-HC-7149. The said information was recorded and forwarded to his immediate superior officer, i.e. Superintendent, NCB, Ahmedabad. Thereafter, the panchas were called and Shri Vikram Ratnu PW-2, along with his team, reached at the place near Kalupur Railway Station, where they found a person of similar description as per the information received, carrying one bag and one another person with bags and both were standing on the foot-path near compound wall of railway station, opposite Hotel Sagar. They kept their bags on foot- path and waited for somebody. After some time, one white colour Maruti Zen car bearing registration No. GJ-1-HC-7149 driven by one young person came at the place where two other persons were there. That the young person came out from the car and it was found that the person having bald head and big mustache gave all the three packets to the person who came out from the car one by one, and the packets were kept on the rear seat of Zen car, and thereafter, the parcel tied in the newspaper was handed over. At that stage, all the members of the team surrounded, Shri Vikram Ratnu PW-2 got himself introduced with panchas and the person having big mustache described himself as Omkarnath Kak @ Panditji (A-1) and the person companying A-1 was introduced by himself as Ramswarup Chunilal (A-4). Thereafter, the option was given for their search and seizure in presence of any gazetted officer or Magistrate, which was not exercised and, thereafter, search and seizure was made by PW-2 Shri Vikram Ratnu, the members of his team and panchas. Upon preliminary testing with drug testing kit, it was found that substance was a charas which was kept in the suitcase boarded in the car. As it was a public place, it was not convenient to undertake further process, therefore, they were taken to the NCB office, which was also not objected and thereafter the panchnama was prepared. The total material charas found from the suitcase was weighed and it was found that the gross weight was 29.530kg and the net weight was 28.350kg. Thereafter, the samples were taken and remaining material was sealed and thereafter the summons was issued and the statements under sec. 67 of the NDPS Act were recorded and on having found prima- facie involvement of the accused concerned, the arrest was also effected.

4. During the course of investigation, it was found that certain quantity of charas was delivered at Kalol and in exchange thereto, the amount of Rs. 1.32 lacs was recovered. Hence Shri Umesh Pathak, PW-4, Intelligence Officer of NCB, called for the panchas and another team had visited the place as was to be shown by Raju Siddh (A-3) on 18.9.203 at Kalol, which was the house of Gulamnabi Mahebubbhai Mansuri (A-6) and upon the entry in the premises by the members of the team including Umesh Pathak PW-4, Gulamnabi Mahebubbhai Mansuri as well as his wife Kamarunnisa (A-7) and other two persons Rajabsha Ramzansha Fakir (A-8) and Ahmedhusen Pirubhai Mansuri (A-9) were found inside. After introduction, Umesh Pathak gave them option for their search and seizure in presence of any gazetted officer or Magistrate, but such option was not exercised, and thereafter, upon search, certain substance was found in form of laddu having typical smell and upon testing with the drug testing kit, the result was shown as that of charas, and therefore, the total quantity was seized having gross weight of 10.150kg and net weight of 9.980kg and the currency notes of Rs. 89,360/- was also found from the possession of A-7 being the sale proceeds of charas. The panchnama was prepared for search and seizure. The samples were taken and the materials were also sealed. Thereafter, the summons were issued to all the four persons under sec. 67 of the NDPS Act and they were asked to come at Ahmedabad for recording of their statements. The statements were also recorded.

Thereafter, upon prima-facie involvement found, they were arrested.

5. The case was further investigated and ultimately, as per the prosecution case, since there was sufficient material, the complaint was filed by Shailendra Lodha, Intelligence Officer of NCB for the offence under section 20(b) read with section 8(c) and 29 of the NDPS Act read with sec.31 of the NDPS Act.

The said complaint was filed in the Court of City Sessions, Ahmedabad which was initially registered as NDPS Case No. 4/3003, and thereafter, it was registered as Sessions Case No. 69/2004.

6. The learned Special Judge, thereafter, framed the charge on 19.10.2004 for the offence under section 8(c) read with sec. 20(b) and 29 of the NDPS Act against all the accused. So far as A-1 is concerned, since as per the prosecution case, he was also convicted earlier under NDPS Act vide judgment and order dated 22.3.1990 passed in Sessions Case No. 278/1988 and the sentence was imposed of 10 years imprisonment, and the present case being second time involvement, the additional charge under sec. 31 of the NDPS Act against A-1 was also framed.

7. Thereafter, as commission of offence was not admitted by all the accused, the case was further tried. In order to prove the guilt of the accused, the complainant/prosecution led the oral evidence by examining 8 witnesses and the documentary evidence was also produced. Thereafter, learned Special Judge recorded the statement of the accused under sec. 313 of CrPC, wherein, all the accused denied the evidence against them. However, in the further statements which were given in writing, wherein, A-1 alleged that because of the enmity with Vikram Ratnu PW-2, he has been wrongly involved and under threat, pressure and by applying atrocity, his signatures have been taken. Since A-2 was absconding, he was not tried. In the further statement, A-3 stated that he has been wrongly involved in the case and the signatures were taken and the writing got executed under physical and mental pressure. Similar was stated in the further statement by A-4. However, so far as A-6 to A-9 are concerned, they submitted a combined further statement in writing, wherein, they stated that they have not committed any offence and the place was not of their ownership or of possession and no statement under sec.67 of NDPS Act was voluntarily and the statements were retracted as per the application given and they denied for any material found from their possession of charas and they prayed for their acquittal since they were innocent.

8. On behalf of the accused, no evidence was led.

The learned Special Judge, thereafter, heard the complainant/prosecution and the accused, and the learned Special Judge, thereafter, on 14.2.2008 found all the accused guilty for the offence under sec. 20(b) and 2(c) of the NDPS Act. The learned Special Judge, thereafter, also heard the accused on the point of sentence and as per the order dated 18.2.2008, the learned Special Judge has imposed following sentences:

1. A-3 was imposed sentence of 10 years R/I with fine of Rs. 1 lac and six months S/I for default in payment of fine for the offence under section 20(b) and 2(c) of the NDPS Act. A-3 was also imposed sentence of 10 years R/I with fine of Rs.

1 lac and six months S/I for default in payment of fine for the offence under section 29 of the NDPS Act.

2. A-4 was imposed sentence of 10 years R/I with fine of Rs. 1 lac and six months S/I for default in payment of fine for the offence under section 20(b) and 2(c) of the NDPS Act. A-4 was also imposed sentence of 10 years R/I with fine of Rs.

1 lac and six months S/I for default in payment of fine, for the offence under section 29 of the NDPS Act.

3. A-5 was imposed sentence of 5 years R/I with fine of Rs. 50,000/- and six months S/I for default in payment of fine for the offence under section 20(2)(b) of the NDPS Act and the sentence was also imposed for 5 years R/I with fine of Rs. 50,000/- and six months S/I for default in payment of fine, for the offence under section 29 of the NDPS Act.

4. A-6 was imposed sentence of 10 years R/I with fine of Rs. 1 lac and six months further S/I for default in payment of fine for the offence under section 20(b) and 2(c) of the NDPS Act and further sentence has also been imposed upon A-6 for the offence under section 29 of the Act for 10 years R/I with fine of Rs. 1 lac and six months S/I for default in payment of fine.

5. Sentence has been imposed upon A-7 for the offence under section 20(b) and 2(c) of the Act of 10 years R/I with fine of Rs. 1 lac and six months further S/I for default in payment of fine. A-7 has also been imposed sentence for the offence under section 29 of the Act for 10 years R/I with fine of Rs. 1 lac and six months further S/I for default in payment of fine.

6. The sentence has been imposed upon A-8 for the offence under section 20(b) and 2(c) of the Act for 10 years R/I with the fine of Rs. 1 lac and six months further S/I for default in payment of fine. The sentence has also been imposed upon A-8 for the offence under section 29 of the Act for 10 years R/I with fine of Rs. 1 lac and six months further S/I for default in payment of fine.

7. The sentence has been imposed upon A-9 for the offence under section 20(b) and 2(c) of the Act for 10 years R/I with fine of Rs. 1 lac and six months further S/I for default in payment of fine. The sentence has also been imposed upon A-9 for the offence under section 29 of the Act for 10 years R/I with fine of Rs. 1 lac and six months further S/I for default in payment of fine.

9. The learned Special Judge in respect of each of the accused directed that both the sentences shall run concurrently and the period during which the concerned accused remained in jail shall be given set-off.

10. The aforesaid were the sentences imposed upon A-3 to A-9. However, so far as A-2 is concerned, as observed earlier, he was absconding accused, and therefore, no trial had taken place for him. In respect of A-1, after he was held guilty vide order dated 14.2.2008, the application was submitted by the prosecution on the same date, i.e. on 14.2.2008 Exh.

202 for return of the certified copy of the judgment produced of Sessions Case No. 278/1988 together with the list of the documentary evidence, and such prayer was granted on production of the zerox copy by the learned Special Judge. Thereafter, an application being Exh.203, under section 216 of CrPC was submitted by the prosecution for framing of the additional charge under section 31A of the Act against A-1 and it was also prayed that further plea and further statement be recorded as per the provisions of sec. 211(7) read with section 236 of CrPC. The aforesaid application was submitted on 14.2.2008, and the learned Special Judge had fixed the application for hearing on 19.2.2008. The objections were filed by A-1 to the aforesaid application of the prosecution Exh.

203 being Exh. 206 on 18.2.2008. Thereafter, on 19.2.2008, application was submitted at Exh. 207 by the prosecution, whereby, the certified copy of the judgment dated 22.3.1990 in Sessions Case No. 278/1988 was produced and it was prayed that the said certified copy of the judgment be exhibited. It may be recorded that on behalf of A-1 or any other accused, no specific objections were raised but it was stated as “seen” on behalf of A-1. The learned Special Judge, on the very day, i.e. 19.2.2008 passed the order for allowing the production and for exhibition of certified copy of the judgment of Sessions Case No. 278/1988. Accordingly, the certified copy of the said judgment was given exhibit number being Exh. 208. It appears that the learned Special Judge, thereafter, on 22.2.2008 passed the order, whereby, application of the prosecution for framing of the additional charge Exh. 203 and the objections raised by A-1 at Exh. 206, were disposed of and the application of the prosecution for framing of the additional charge under sec. 31A of the Act was allowed. Thereafter, the additional charge was framed on the same day for the offence under section 20(b)(c) read with section 31A of the Act against A-1. On the same day, the plea was also recorded for the amended charge, wherein, A-1 did not admit the guilt for the charged offence. The statement under section 313 of CrPC for the additional charge of A-1 was recorded by giving reference to the certified copy of the judgment in Sessions Case No. 278/1988, wherein, A-1 stated that he had not kept anything in the railway clock room and he stated that the same was false and he had nothing to state further. Thereafter, the learned Special Judge heard the prosecution as well as A-1 on the point of sentence and vide order dated 26.2.2008, the learned Special Judge has imposed the sentence upon A-1 for the offence under section 29 of the Act for 10 years R/I with the fine of Rs. 1 lac and six months further S/I for default in payment of fine, and it was also observed that the period under gone in jail by the accused shall be given set-off. The learned Special Judge for the offence under section 20(2)(b)(c) read with section 31A of the Act imposed sentence upon A-1 for hanging (death sentence) with the observation that the implementation of the sentence shall be after approval or confirmation by the High Court. Under the circumstances, for the death sentence imposed upon A-1 by the learned Special Judge, the matter arose before this Court for confirmation of the said death sentence being Criminal Confirmation Case No. 2/2008. A-1 has also preferred appeal against the conviction and imposition of sentence upon him being Criminal Appeal No. 1297/2008. The other accused, namely, A-3 has preferred Criminal Appeal No. 1564/2008, A-4 has preferred Criminal Appeal No. 1562/2008, A-7 has preferred Criminal Appeal No. 3145/2008 and A-9 has preferred Criminal Appeal No. 2945/2008 against their conviction and imposition of sentences. It may be recorded that A-5 has not preferred any appeal against conviction and sentence. A-6 is reported as expired after conviction and imposition of sentence. A-8 has not preferred any appeal against the conviction and sentence. Under the circumstances, all aforesaid appeals with criminal confirmation case before this Court.

11. We have heard Mr. Madansingh Barod for A-1 in his appeal and Mr B.S. Supehia for A-1 in criminal confirmation case. We have heard learned advocates Mr. Mihir Pathak for A-4, Mr. Vivek Mapara for A-3, Mr.G.D. Bhatt for A-7 and Mr. Anil Mehta for A-9 in their respective appeals. We have heard learned APP Mr. KL Pandya on behalf of the State in all the appeals and Mr. K.T. Dave learned advocate for NCB/original complainant. The learned counsels appearing for the respective parties have taken us to the entire record and the evidence led by the prosecution and we have also considered the judgment and the reasons recorded by the learned Special Judge.

12. As observed earlier, since the appeals are to be heard and disposed of before confirmation of the death sentence imposed upon A-1, the appeal against the conviction and the imposition of the sentence preferred by A-1 is required to be considered. Since the facts are interconnected and arise from the common trial, we also find it proper to simultaneously consider the appeals preferred by the other co- accused, and thereafter, we find it appropriate to consider the confirmation case. Simultaneously, as the application has been submitted being Criminal Misc. Application No. 2841/2012 by NCB/Original complainant for taking the confessional statement of A-1 dated 18.9.2003 under sec. 67 of the Act, the same also would be considered simultaneously at the appropriate stage.

13. The testimony of Vikram Ratnu PW-2 Exh. 56, who is officer of NCB, fully supports the case of the prosecution. He is the officer, who has received the information and thereafter with his team and panchas, arranged for search and seizure at the place near Kalupur Railway Station. After recording of the information, he has immediately intimated to his superior officer and as per his testimony, after receipt of the information on 17.9.2003, he had arranged for the raid and the panchas were called. They reached at the spot, where, as per the information supplied, A-1 and A-4 were found and immediately A-3 came there in Maruti Zen car. The option was given to them for their search and seizure in the presence of any gazetted officer or Magistrate, which was not exercised, and thereafter, the search was made in the presence of panchas and it was found upon preliminary test with drug testing kit the substance was charas in the bag/s from the possession of the accused concerned. Thereafter, as it was a public place, the other process of taking samples for sending to the FSL and sealing of the remaining material etc. was under taken in the office of NCB. The total quantity found was of 29.530kg gross and 28.350kg net quantity of charas. The amount of Rs. 1,32,000/- was also found from A-1 being the sale consideration of charas and also recovered Rs. 1,42,000/- from A-2. As per the evidence of the said witness, he has recorded the statement of Nasirhusen A-2 under section 67 of the NDPS Act on 20.9.2003 as well as on 24.9.2003 (Exh. 75 and 76). He has recorded the statement of A-3 on 18.9.2003 (Exh. 61) under section 67 of the NDPS Act. He also recorded the statement of A-1 (Exh. 69) under section 67 of the NDPS Act. Considering the testimony of this witness, it can be said that he has fully supported the case of the prosecution. PW-1 Smt. Urvashi S. Gohil, a panch witness, whose deposition is recorded at Exh. 29, has also fully supported the case of the prosecution. She was also serving as Circle Officer and Executive Magistrate at the relevant point of time. She has deposed that after she was called, she was informed by her superior officer to reach at the place of office of NCB. Another panch witness Becharbhai Kodarbhai Patel, was working as Talati (Gram Panchayat) Vadaj. She has stated that all procedure of search and seizure was undertaken in her presence and the substance was found and the currency notes were also recovered. She has stated that the preparation of panchanama Exh. 30 was done in her presence and right from proceeding for raid until the whole work of search and seizure, taking of samples and sealing of materials were in her presence. The defence has not been able to bring about any material contradictions from her testimony of panch witness, for the search and seizure for preparation of panchnama. PW-3 Sanjay Parekh Exh. 84, is the another panch for search and seizure at Kalol, where, as per the prosecution case, A-6 and A-7 were residing and A-8 and A-7 were also found. He has also fully supported the case of the prosecution for reaching at the place where A-3 had delivered the charas and the consideration was paid. As per his testimony, the option was given for search in presence of any gazetted officer or Magistrate to A-6, A-7, A-8 and A-9, which was not exercised, and thereafter, upon further search, the total quantity of charas found was of 10.150kg, net weight was of 9.890. He has also stated that the amount of Rs. 89,360 being consideration for sale of charas was found from the possession of A-7. He has also supported the preparation of panchnama, testing of the substance and charas found upon preliminary testing, taking of sample and sealing of the sample as well as other items recovered. PW-4 Shri Umesh Pathak, who was one of the member of the raiding team at the time of raid and his deposition is recorded at Exh. 101. He has confirmed the receipt of the information and he has deposed that at that time, Vikram Ratnu PW-2 was the in-charge officer and he was one of the member of the raiding party. As per his testimony, he had accompanied with the panchas for visiting to Kalol at a place, where A-3 had delivered charas and the consideration was to be paid to him. He has fully supported the case of the prosecution for the premises shown by A-3, opening of the door by A-7 and the presence of A-6 and also the presence of A-8 and A-9. As per the said witness, the option was given for search and seizure to A-6 to A-9 in the presence of gazetted officer or Magistrate, which was not accepted by the concerned accused, and thereafter, search and seizure having taken place. As per his testimony, he has recorded the statements under section 67 of the NDPS Act of A-6, A-7, A-8 and A-9, Exh. 109, 110, 111 and 112, all on 19.9.2003. Shri Prafulsinh Navalsinh Sarvaiya, PW-6, whose deposition was recorded at Ex. 148, was the immediate superior officer working as the Superintendent in the Narcotic Control Bureau. He has also supported the case of the prosecution inasmuch as he confirmed of having received the information from Vikram Ratnu PW-2 and receipt of the intimation given to him by Vikram Ratnu PW-2. He has confirmed that he has recorded the statement of A-1 under section 67 of the Act on 26.9.2003 Exh. 152, A-3 on 23.9.2003 Exh.

150 and A-4 on 18.9.2003 Exh. 149. Shri Shailendra Lodha PW-8, whose deposition was recorded at Exh.163, was also one of the members of the raiding party and the Intelligence Officer at the relevant point of time. He has also fully supported the case of the prosecution. He was also the person who filed the complaint before the competent court. As per his testimony, he has recorded the statement of A-2 under section 67 of the Act on 18.9.2003 Exh. 164 and A-5 on 18.9.2003 Exh. 165.

14. The report of scientific examination of the samples is produced at Exh. 120 and as per the said report, all fourteen samples answered positive test of charas containing %THC (Tetrahydro - cannabinol) of the different decimal from one percent to two percent, as stated in the said report.

15. The aforesaid evidence goes to show that all the accused were found dealing in the business of charas and A-1 was the main person who used to get the quantity supplied by Abul Jamdar of Kashmir (not prosecuted ) and the other accused were acting in aid and assistance of A-1 for sale of charas. Two raids had been carried out by search and seizure, one nearby Kalupur railway station and another at Kalol, further shows that a huge quantity of charas 29.530kg (near Kalupur railway station) on 17.9.2003 and 10.150kg at the residence of A-6 and A-7, total 39.680kg, plus consideration so realized from the sale of charas of Rs. 4,61,000/ from the possession of A-1, Rs. 1,32,000/- from the possession of A-3 and Rs. 79,360/- from the possession of A-8 and A-9 were recovered. The scientific evidence shows that the substance recovered was charas and the possession thereof or sale and purchase of the same is an offence under the Act.

16. Learned counsel Mr. Supehia as well as Mr. Barod appearing for appellant- A-1, raised first contention that the mandatory procedure as required under proviso to Sec. 42(1) of the Act, has not been followed. It was contended that as per the provisions of sec. 42 of the Act, and more particularly, the proviso, if the officer has reason to believe that a search warrant or authorisation cannot be obtained, since there may be concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise, but it is mandatory for him to record the grounds for his belief, and in the present case, no evidence has come on record that any grounds were recorded by the officer concerned for searching the conveyance, namely Maruti Zen. In the submission of the learned counsels for the appellant- A-1, since the language used under section 42 of the Act is also for entry and searching of conveyance, the proviso shall apply and having not followed the same, it can be said that the search and seizure has been undertaken by the raiding officer without following mandatory procedure and the whole case of the prosecution would be vitiated, and all the accused A-1 to A-4 would be entitled to the benefits and consequently the acquittal.

Section 41 and 42 for the ready reference, reads as under:

41. Power to issue warrant and authorisation.

(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed.

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by nigh or himself arrest a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-

section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub- section (2) shall have all the powers of an officer acting under section 42

42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is embowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.“

17. The contention may, prima-facie, appears to be with some substance, but upon closed scrutiny, it appears that the said contention has to be considered keeping in view the provisions of section 43 of the Act. Before we further consider the matter, we find it proper to extract the relevant observation of this Court in the case of Sulochnaben Shivram Kadam vs. State of Gujarat in Criminal Appeal No. 1269/2008 and allied matters, decided on 7-10/5/2010, wherein, the question arose for consideration before this Court for the search and seizure of a truck or car at a place or public road, and consideration and contention based on section 42 and 41(2) read with section 43 of the Act, this Court after consideration of section 41,42, and 43, further observed at para 15 to 19, as under:

“15. It was contended by the learned Counsel appearing for all the accused that the mandatory procedure as provided under Sections 41 and 42 of NDPS Act (hereinafter referred to as the 'Act') have not been followed by NCB Officers, therefore, the whole case of the prosecution may fall to ground. Mr.Naik, learned Counsel appearing for A-2 contended that the procedure as was required to be followed was under Section 41(2) OF THE Act, whereas the learned Counsel appearing for the other accused contended that the procedure as required was under Section 42 of the Act, which has not been followed.

16. It was the submission of the learned Counsel, Mr. Buch that as such Section 43 of the Act would apply, since the search and seizure of the truck and the car was at a public place and on a public road, but he alternatively contended that even if this Court is to find that the procedure under Section 42 of the Act was required to be followed, then also such procedure has been followed in the present case. It was submitted that even if this Court is to find that the procedure under Section 41(2) of the Act was required to be followed, then also the said procedure has been followed. Therefore, it was contended that there is no lapse of any mandatory procedure while undertaking search and seizure or the authorization or any warrant, therefore, the contention raised on behalf of the accused does not deserve to be accepted.

17. In order to appreciate the contention, it would be necessary to refer to the provisions of Sections 41, 42, and 43 of the Act.

41. Power to issue warrant and authorisation. (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed.

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by nigh or himself arrest a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.

42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is embowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,-(a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.

43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may--

(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.--For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.

18. The Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh, reported in (1999) 6 SCC, 172 had an

observed, thus, at paragraphs 8 to 10 as under:-

“8. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-Section (2) the power has also been vested in Gazetted Officers of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other Department of the Central Government or of Border Security Force, empowered in that behalf by general or special order of the State Govt. to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building etc.with a view to seize any contraband or document or other article which may furnish evidence of the commission of suchan offence, concealed in such building or conveyance or vessel or place.

9. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reasonto believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.

10. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrantor authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub- section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.”

19. Further, the question again came up for consideration before the Apex Court for the interpretation and compliance of the provisions of Section 42 in the case of Kernail Singh Vs. State of Haryana, reported in (2009) 8 SCC, 539, wherein the Apex Court, after considering the subsequent decision in the case of Sajan Abraham Vs. State of Kerala, reported in (2001) 6 SCC, 692 as well as the decision in the case of Abdul Ibrahim Mansoori Vs. State of Gujarat, reported in 2000(2) SCC, 513 recorded the conclusion for the interpretation of Section 42 at paragraph 35, which reads as under :-

“35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with there requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements ofSection 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.”

18. The aforesaid shows that it was observed by this Court that section 42 speaks about search and seizure from any other place, conveyance or enclosed place, while Section 43 speaks about the search and seizure from public place or in transit. The wording of Sections 41 and 42 with regard to the information taken in writing has been deliberately omitted by the legislature in Section 43. When any search or seizure is to be made in any public place or in a vehicle in transit or any person to be arrested or detained from the public place, it is not intended by the legislature to take down the said information in writing.

19. If the facts of the present case are further examined, it appears that it is true that the information was taken down in writing and the intimation was also given to the immediate superior officer of Vikram Ratnu PW-2. But, as there is no contention for non-compliance, requirement for recording for information and intimation to the superior officer, as stated under Section 42, no discussion would be required on the said aspect. However, if the language under Section 42 of the Act is considered, it has applicability for making search and seizure if the information is received for any prohibited substance is kept or concealed in any building or conveyance or enclosed place, whereas, Section 43 refers to the seizure of any narcotic drug or psychotropic substance in any public place. The place at which A-1 to A-4 were intercepted and surrounded was nearby Kalupur Railway Station, and that too, on the foot-path, Opp. Sagar Hotel. It can hardly be said that a foot-path of a road near railway station is not a public place. Therefore, if the space at which the raid was carried out and the search was made is considered, it was a public place, to which, for the purpose of search and seizure, the provisions of section 43 of the Act would apply and not section 42 for the purpose of search and seizure in any building or conveyance or enclosed place. Section 43 for the purpose of seizure and arrest at a public place does not restrict any specific requirement to be followed if search and seizure is to take place at a public place. We may also record that the explanation to Section 43 providing for inclusion of various public places, which makes it abundantly clear that the place opposite Kalupur Railway Station on a foot-path where there was vehicular traffic passing on the road would meet with the expression public place as provided under Section 43 of the Act. Under these circumstances, we find that on 17.9.2003, when the search and seizure had taken place, the same was on a public place where the requirement to be followed was under section 43 and not under section 42 of the Act, and more particularly, proviso to Section 42 as sought to be canvassed by the learned counsels for A-1.

20. The attempt to contend that since the language used under section 42 is also conveyance and Maruti Zen car could be said as conveyance, section 42 and more particularly, the proviso would apply, in our view, cannot be countenanced for the simple reason that the whole language of Section 42 providing for search and seizure between sunset and sunrise is for entry and search to the building or conveyance or enclosed place which would mean even if to be considered for conveyance, such conveyance has to be at a place other than public place. Further, even under section 43, the language used is also conveyance. It cannot be considered that section 43 as well as section 42 would operate in the same contingency. Section 43 for the purpose of conveyance would apply if such conveyance is at a public place which would include the road or other public place as provided by the explanation to Section 43, whereas, if the vehicle or conveyance is at a place other than the public place, section 42 for the purpose of entry and search between sunset and sunrise may apply. The present case being search in a public place of a conveyance covered by section 43, section 42 would have no applicability for the purpose of entry for search of conveyance, therefore, we find that the contention is meritless, hence dismissed.

21. Learned counsels for A-1 next contended that the confessional statement or the statement recorded under sec. 67 of the Act may not be considered by this Court for the purpose of considering the case of the prosecution. It was submitted that the whole episode is narrated in the manner that the accused concerned were taken to the NCB Office and thereafter the statements were recorded under section 67 of the Act, not only that, but even after the arrest during the period of remand, the statements have been recorded under sec. 67 of the Act. In the submission of learned counsels for the appellant, no such statement may be prior to the arrest or after arrest should be considered since they are not voluntarily and under compulsion and threat. It was submitted that the statement under sec. 67 of the Act recorded of the accused are taken out, for the purpose of considering the guilt of the accused, the prosecution case would fall down. It was submitted that so far as A-1 is concerned, his statement prior to the arrest has not even been exhibited, and therefore, it was submitted that the case may be considered excluding all statements recorded under sec. 67 of the Act.

15.3.2012

22. Whereas, Mr. KT Dave learned counsel appearing for NCB/original complainant submitted that the position of law is settled inasmuch as when the statements of the accused are recorded under section 67 of the Act, it makes no difference as to whether it is prior to the arrest or after arrest. In his submission, the court is required to be satisfied on the aspect of voluntariness of the statements and not taken under duress, coercion or threat, and as per him, bar of section 25 of the Evidence Act which applies to the statements recorded by the police while in custody has no applicability to the consideration of the statements recorded under section 67 of the Act by NCB Officer. It was, therefore, submitted that such contention cannot be accepted and this court may consider all statements of the concerned accused which have come on record including the statement of A-1 recorded prior to his arrest, by exhibiting the same, as prayed for in the Criminal Misc. Application No. 2841/2012. He also submitted that as such the said statement of A-1 prior to the arrest recorded by one Shri Sahjanand, Intelligence Officer on 18.9.2003 was also treated as exhibited by the learned Special Judge. He submitted that all parties had treated the matter as with the statement of A-1 dated 18.9.2003. However, after the judgment but before the appeal is finally heard, it has come to the notice of NCB /original complainant that the aforesaid statement which was produced with the list of the documents was not exhibited. He also submitted that reference to the statement dated 18.9.2003 of A-1 is made in the complaint and the gist of the statement is also stated in the complaint. Therefore, it is not a new document for which the witness is required to be examined who recorded the statement. Of course, he submitted that alternatively prayer is also made in Criminal Misc. Application no. 2841/2012 that witness Sahjanand, Intelligence Officer, who recorded the statement of A-

1 be examined for the purpose of exhibition of said statement of A-1 either by this Court or through the learned Special Judge and the opportunity, if this Court so desirous, would also be made available to the accused, for cross-examination of the said witness. He, therefore, submitted that when this court considers the said aspect, appropriate order may also be passed in the proceedings of Criminal Misc. Application No. 2841/2012.

23. Whereas, on behalf of A-1, it was submitted that if the statement of A-1 dated 18.9.2003 is not exhibited and has not come in the evidence, since the officer Mr Sahjanand, who recorded the statement of A-

1 was not examined by the prosecution, and hence may not be exhibited by this Court, at this stage, in the proceedings of appeal. It was submitted that such statement can be exhibited only if Mr Sahjanand, Intelligence Officer, who recorded the statement of A-

1 is examined by entering into the witness box and A-1 is given opportunity to cross-examine the said person and until the said exercise is completed, the statement dated 18.9.2003 of A-1 may not be exhibited.

24. We find that before we consider the question of exhibiting the statement of A-1 dated 18.9.2003 or otherwise, the matter is required to be considered for consideration of the statement of the accused concerned, as recorded under section 67 of the Act. Broadly, the statements can be classified into two categories, one would be those statements recorded prior to the arrest and the another would be the statements recorded after the arrest while in custody. So far as the statements recorded under section 67 of the Act prior to the arrest or when the person is not in custody, can be considered for the purpose of evidence because until the arrest is effected, it can be said as the enquiry in connection with the contravention of the provisions of Act. Section 67 of the NDPS Act, for ready reference, reads as under:

“67. Power to call for information, etc.- Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,-

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) require any a person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

25. Therefore, after issuance of the summons, if during the course of enquiry in connection with the contravention of the provisions of the Act any person submits information or person is examined who is acquainted with the facts and circumstances of the case, such material came out of the enquiry can be considered in evidence. But, at the same time, the power under section 67 is to be read with restriction in exercise of powers as provided under section 68 of the Act. Section 68 of the Act, for ready reference, reads as under:

68. Information as to commission or offences.- No officer acting in exercise of powers vested in him under any provision of this Act or any rule or order made thereunder shall be compelled to say whence he got any information as to the commission of any offence.

26. The aforesaid provisions shows that bar operates to the officer acting in exercise of power under the Act to compel any person for any information as to the commission of any offence. The conjoint reading of section 67 read with section 68 of the Act would show that during the course of enquiry, if one voluntarily discloses the information pertaining to the contravention of the provisions of the Act, the same can be recorded, but if such person is an accused or who is said to have committed any offence, he shall not be compelled to say anything about the information for commission of the offence. To say in other words, if it is established that the person who discloses the information or stated the facts and circumstances for commission of the offence voluntarily, the same is an admissible piece of evidence, but if sufficient material has come on record before the court showing that the said person was compelled to make the statement about the information for commission of offence, such statement would be hit by provisions of section 68 of the Act, and may not be considered as admissible piece of evidence or even if it is admitted by exhibition of such document, the Court may not consider the same against the person who is alleged to have committed the offence and accused in the present case. Therefore, barring the statement made under the compulsion under section 67 of the Act, all the statements recorded or the information supplied under section 67 of the Act can be taken into consideration for the purpose of finding out as to whether the provisions of the Act have been contravent or not. As regards for burden of proof for showing voluntariness or compulsion in making such statement is concerned, the officer who has recorded the statement under sec.

67 of the Act has to satisfy the court that such statement was voluntarily and not under compulsion, but thereafter, the burden would be upon the accused to show that he or she was compelled to make such statement, and therefore, such statement is hit by the provisions of section 68 of the Act.

27. If the aforesaid provision is considered in light of section 25 of the Evidence Act, the language is different. Section 25 of the Evidence Act, for ready reference, reads as under:

25. Confession to police officer not to be proved.- No confession made to a police officer shall be proved against a person accused of any offence.

28. The aforesaid shows that as per section 25 of the Evidence Act, there is complete bar operating for proving of confession in offence made by the concerned accused before a police officer, whereas, the language under section 67 read with section 68 of the NDPS Act, is different inasmuch as it makes the statement made and recorded before the concerned officer of the Central Government, as admissible and such can be proved but only bar is that it should not have been made under compulsion as provided under section 68 of Act.

29. The aforesaid shall be the position so far as the statement made under section 67 of the NDPS Act prior to the arrest or when the accused were not in the custody. But for the confession or the statement made under section 67 of the NDPS Act by the concerned accused, after arrest or while in custody may stand on different footing and different consideration. So far as the Act is concerned, neither under section 67 nor under section 68 such distinction has been expressly provided, but under section 26 of the Evidence Act, specific provisions have been made, which reads as under:

“26. Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.”

30. Section 26 of the Evidence Act provides that the confession by the accused while in custody of police not to be proved against him unless it is made in the immediate presence of a Magistrate and for proving of such statement made before the Magistrate, and the Magistrate who recorded the statement is required to be examined. It is true that the officers of NCB or the officers of the Central Government under the Act, are not the police officer as per the Evidence Act, since the word “police officer” has not been defined. But under Code of Criminal Procedure, Section 2(o) defines the “officer in-charge of the police station”. For ready reference, section 2(o) of the Code of Criminal Procedure, reads as under:

“2(o) “officer-in-charge of a police station” includes, when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.”

31. The aforesaid provisions shows that the officer- in-charge of the police station includes the police officer present at the police station either himself or next in rank but above the rank of constable. At this stage, we may record that section 53 of the NDPS Act also provides for investment of powers of certain departments to the powers of officer-in-charge of the police station. Section 53 of the NDPS Act, reads as under:

53. Power to invest officers of certain departments with powers of an officer-in- charge of a police station.- (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-in- charge of a police station for the investigation of offences under this Act.

32. The aforesaid provisions shows that the Central Government in consultation with the State Government may invest any officer of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government, with the power of officer- in-charge of the police station for investigation of the offences under the NDPS Act. Therefore, for the purpose of investigation of the offences under this Act, the officer so invested with the powers is to function as the officer-in-charge of the police station, consequently, the officer present at the police station of a specified rank or next to him but of a specified rank. The language under section 53 of the NDPS Act, can be said similar to section 2(o) of Code of Criminal Procedure, wherein also, the officer- in-charge of the police station has been defined. Section 51 of NDPS Act, reads as under:

“51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.”

33. The aforesaid shows that the provisions of the Code of Criminal Procedure shall apply so far as they are not inconsistent with the provisions of the Act for the purpose of all warrants issued, arrest, search and seizure made in the Act. One can say that the provisions of CrPC would apply unless there is a specific provisions under the Act for such purpose. If the language under sec. 2(o) is considered with the provisions of section 57 of the Act read with the provisions of section 51 of the Act, it can be said that for the purpose of exercising the powers for issuance of warrant and arrest, the officer of Central Government so invested with the powers of the police station, may function as police officer under CrPC, of course, the same is restricted to warrant, arrest, search and seizure. The pertinent aspect is the arrest. Even for the purpose of production and remand, the provisions of CrPC would apply. Therefore, if under section 26 of the Evidence Act, the bar operates for proving the confession made in the police custody, whether the statement made under section 67 while in custody of the officer so invested with the powers being in-charge of the police station, is an aspect required to be taken into consideration, and consequently, the bar operating under section 26 of the Evidence Act, would apply or not would also an aspect to be taken into consideration for consideration of the statements made under section 67 of the NDPS Act by the accused while in custody after arrest.

34. At this stage, we may referred to the decision of the Apex Court in the case of Raju Premji vs. Customs, NER, Shillong Unit, reported in (2009)16 SCC 496, and more particularly, the observations made at para-26, wherein, it was observed, thus;

26. In any event if they were in custody of the police officers as also the Customs Officers, although they were not accused in strict sense of the term, any confession made by them would not be admissible in terms of Section 26 of the Evidence Act, 1872.

35. However, Mr. KT Dave learned counsel appearing for NCB/original complainant has strongly relied upon the decision of the Apex Court in the case of Rajkumar Karwal vs. Union of India and ors., reported in (1990)2 SCC 409, wherein, the Apex court had an occasion to consider the identical question as to whether the officer functioning under the NDPS Act invested with the powers under section 53 of the NDPS Act could be termed as police officer within the meaning of section 25 of the Evidence Act or not, and the Apex Court made the observation and the relevant discussion is available in paras-22 and 23, for ready reference, reads as under:

“22. For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefor, provides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, not with standing anything contained in the Code. But, argued learned counsel for the appellants, the officers empowered to investigate under Section 53 of the Act must of necessity follow the procedure for investigation under Chapter XII of the Code, since the Act does not lay down its own procedure for investigation. By virtue of Section 51 of the Act, the provisions of the Code would apply since there is no provision in the Act which runs counter to the provisions of the Code. It was said that since the term 'Investigation' is not defined by the Act, the definition thereof found in Section 2(h) of the Code must be invoked in view of Section 2(xxix) of the Act which in terms states that words and expressions used in the Act but not defined will carry the meaning assigned to them, if defined in the Code. Section 2(h) of the Code, which defines 'investigation' by an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a Magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section 154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. Once such information is received and registered, Section 156 empowers any officer-in-charge of the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be a police officer, no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Sec. 173 of the Code. That is why this Court has since the decision in Badku Joti Savant (AIR 1966 SC 1746) accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Sec. 173, he cannot be described to be a 'police officer' under S. 25, Evidence. Act. Counsel for the appellants, however, argued that since the Act does not prescribe the ,procedure for investigation, the officers invested with power under S. 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under S. 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under S. 53 of the Act, all the powers of Chapter XII, including the power to submit a report under S. 173 of the Code. But the issue is placed beyond the pale of doubt by subsection (1) of S. 36A of the Act which begins with a non obstante clause - notwithstanding anything contained in the Code - and proceeds to say in clause (d) as ,under:

"36-A(d): a Special Court may upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial."

This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under S. 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Sec. 53 of the Act, other than a police officer, is entitled to exercise 'all' the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under S. 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.

23. In view of the above discussion we are of the opinion that the view taken by the Delhi High Court in the impugned judgment, which is in accord with the view taken by the Allahabad High Court in Mahesh v. Union of India, (1988) 1 FAC 339: (1988 All LJ 411), and the Gujarat High Court in Mangal Singh v. State of Gujarat, (1988) 2 FAC 173: (1989 Cri LJ 460), is unassailable and must be upheld. We, therefore, see no merit in the appeal as well as the special leave petition and hereby dismiss them.”

36. Again the question had come up for consideration before the Apex Court in the case of Kanhaiyalal vs.

Union of India, reported in (2008)4 SCC 668 and it was observed by the Apex Court at para-41 to 45, as under:

“41. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002, and TADA Act, 1987, are much more stringent and excludes from its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.

42. Of course, this Court has also held in Pon Adithans case (supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence.

43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava's case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.

44. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and others (1990) 2 SCC 409, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not "police officers" within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.

45. Considering the provisions of Section 67 of the N.D.P.S. Act and the views expressed by this Court in Raj Kumar Karwals case (supra),with which we agree, that an officer vested with the powers of an Officer-in-Charge of a Police Station under Section 53 of the above Act is not a "Police Officer" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.”

37. Therefore, in view of the aforesaid two decisions of the Apex Court, in the case of Rajkumar Karwal vs. Union of India and Kanhaiyalal vs. Union of India (supra), it has been held that the officers of NDPS though invested with the powers of the police station are not police officers within the meaning of section 25 of the Evidence Act. Therefore, the express bar provided under the Evidence Act, more particularly, under section 26 of the Evidence Act, would not operate for the purpose of proving the statement made under section 67 of the NDPS Act and the only aspects to be taken into consideration is as to whether such statement has been voluntarily made or not. In view of the aforesaid two decisions of the Apex Court in the case of Rajkumar Karwal vs. Union of India and Kanhaiyalal vs. Union of India (supra), we find that it is not possible for this Court to take a different view that the officers functioning under the NDPS Act invested with the powers of the police station under section 53 of the NDPS Act could be termed as police officers so as to apply the bar of section 26 of the Evidence Act for consideration of the statement recorded under section 67 of the NDPS Act after arrest while the concerned accused were in custody. The resultant effect is that the statement made under section 67 of the Act either prior to the arrest or after arrest would not make any difference for the consideration of the case, since the aspects of voluntariness of the statements or the bar of the statements made under compulsion as per section 68 of the NDPS Act is to apply to all statements whether made prior to the arrest outside the custody or after arrest while in custody.

38. The facts of the present case now if considered with the evidence on record go to show that in each statement, it has been recited by the person concerned that the information which is being supplied by him may be used against him, to which the accused concerned has not objected. In the cross-examination of the officers concerned who recorded the statements, nothing has come out to show that the statements were made under compulsion or that the concerned accused were compelled to make the statements so as to fall in the category of section 68 of the NDPS Act. No complaint has been made by any of the accused before the Magistrate about any force applied or compulsion made when they were produced before the Magistrate after arrest. The retraction of the statement by the concerned accused are not immediate but after a long time, and therefore, under these circumstances, we find that it is not possible to accept the contention of the learned counsels for the accused that the statements were made under compulsion so as to fall within the purview of section 68 of the NDPS Act and cannot be termed as the statements under section 67 of the Act.

39. Hence, we find that we cannot accept the contention of the learned counsels for the appellant that none of the statement made under section 67 of the NDPS Act should be considered for the purpose of tracing the guilt of the concerned accused.

40. In our view, if the statements so recorded of the concerned accused, i.e. Exh. 152, 164, 75, 76, 61, 150, 149, 165, 109, 110, 111 and 112 if considered with the other evidence on record of the search and seizure, the substance of charas found of huge quantity and sale consideration, the FSL report, go to show that the prosecution has been able to prove the case against all the accused for the charged offences barring section 31 and 31A of the NDPS Act, for which, there will be separate discussion, and therefore, whether the statement of A-1 under section 67 of the Act dated 18.9.2003 made before Shri Sahjanand, Intelligence Officer by NCB, is exhibited or not, would not make much difference so far as proving the guilt of A-1 by the prosecution.

41. Learned counsel Mr. Mapara for A-3 submitted that nothing was found from A-3 and the way in which the story of search and seizure is described by the prosecution and its witnesses is unbelievable and not genuine. In the submission of learned counsel for A-3, even the discovery can be said as fake and concocted, and therefore, it was submitted that the same be discarded, and A-3 be granted benefit.

42. The examination of the said contention shows that it is not a matter where nothing was found from A-3 nor it can be said that A-3 has not played any role in the sale of charas and the realisation of the sale proceed. As observed earlier, the prosecution case is to be taken into consideration keeping in view the statement recorded of A-3 Exh.61 and Exh. 150, therefore, it is not possible for us to accept the contention that the discovery is fake or the prosecution case is unbelievable and not genuine, as sought to be canvassed. Hence, the said contention is meritless.

43. Learned counsel Mr. Mihir Pathak for A-4 contended that A- 4 was a labourer and because of his financial poor condition, he was being exploited by A-

1 and compelled to assist A-1 as well as A-3 and A-2.

It was submitted that nothing was found from the conscious possession of A-4 nor there was any intention on the part of A-4 to deal in the business of charas, and therefore, it was submitted that under these circumstances, the story of the prosecution becomes doubtful and so would be for reliability of evidence, and therefore, the benefits be given to A-4. It is not a matter where A-4 has played a role even as a labourer innocently or bonafide as mere labourer to carry the bag or to carry the material at the instance of A-1. The said aspect is further to be taken into consideration with the statement recorded under section 67 of the Act of A-4 by Shri Sarvaiya Exh.

149. It is true that the financial condition of A-4 has stated by him, was absolutely poor and one might gather that on account of poor financial condition A-1 exploited A-4 but the fact remains that A-4 had conscious knowledge that the substance was Charas which he had carried earlier and carried on 17.9.2003, therefore, such aspect for the purpose of proving the guilt, in our view, would not be of much relevance, but may have relevance for quantum of sentence to be imposed upon A-4. Hence, we find that it is not a case where if the evidence led by the prosecution is taken into consideration A-4 would be entitled to the acquittal nor it can be said that the prosecution has not been able to prove the case beyond reasonable doubt for involvement of A-4 in the commission of the alleged offence. Hence, the contention cannot be accepted.

44. It was next contended by Mr. GD Bhatt learned counsel appearing for A-7 that the provisions of section 50 of the Act for giving option for search to be carried out in the presence of any other gazetted officer or the Magistrate has not been complied with so far as A-7 is concerned. He submitted that the evidence of PW-3 and the evidence of witness for giving option is too vague and general, by using the word that “the opportunity was given to them” without specifically stating that such opportunity was given to each of the accused separately. It was submitted that when the strict compliance is a must for giving option as provided under section 50 of the Act and since the prosecution has not been able to prove that such an opportunity was specifically given to A-7, A-7 would be entitled to the benefits and the prosecution case would fail for non-compliance of the mandatory provisions as required under section 50 of the Act.

45. It is true that in the testimony of Sanjay Parekh PW-3 Exh. 84, he has stated that the opportunity was given to them and there is no reference for each of the accused separately, namely A-6 to A-9 which may include A-7. In the evidence of Umesh Pathak PW-4 Exh. 101, the officer of NCB, he has clearly stated that such an opportunity was given to all the four persons who were present in the house, and therefore, such would include A-7. Under these circumstances, we find that the contention raised by Mr. Bhatt does not deserve to be accepted since the prosecution has been able to show that the mandatory requirement for giving option for getting searched in the presence of any gazetted officer or Magistrate was given.

46. It was next contended by the learned counsel for A-7 to satisfy the requirement of section 50 of the Act, even if the accused concerned does not exercise the option for search in presence of any other gazetted officer or Magistrate, it is obligatory for the raiding officer to produce the accused concerned or the person concerned before the Magistrate prior to the search and seizure.

47. In our view, the contention is ex-facie, misconceived inasmuch if the evidence has come on record that the person concerned has not opted for his or her search in presence of any gazetted officer or Magistrate, the question of producing such person before the Magistrate or gazetted officer prior to the search would not arise at all. Therefore, the said contention cannot be accepted.

48. Mr. Bhatt learned counsel for A-7 next contended that A-7 being female and as per the requirement of section 50(4) of the Act, no female can be searched by anyone except the female. He submitted that it is not even the case of the prosecution that in the raiding team or in panchas for visiting to the place at Kalol, any member of the team or any panchas was female. He, therefore, submitted that such would also a mandatory procedure under section 50(4) of the Act for the search of A-7, and therefore, A-7 would be entitled to the acquittal since the mandatory procedure was not followed for search of A-7.

49. The said contention is also, in our view, should not detain us any further in view of the decision of the Apex Court in the case of State of H.P. vs. Pawan Kumar, reported in (2005)4 SCC 350, wherein, the view taken is that requirement of section 50(4) would apply only in case of personal search of a female and not for the search of belongings like that of bag or any other items found nearby the said female. In the said case, it was held that the search of a bag, briefcase or any such article or container, etc. can under no circumstances treated as a body of a human being since all such articles are having separate names and are identifiable separately. The Apex Court, in the said decision concluded at para-26, which reads as under:

“26. The Constitution Bench decision in Pooran Mal v. The Director of Inspection was considered in State of Punjab v. Baldev Singh, and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub- Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him.”

50. If the facts of the present case are examined, it is not a case of the prosecution that any personal search or search of human being or A-7 was made, but on the contrary, as per the prosecution case, the substance charas was found below the seat on the floor where A-6 to A-9 were present. The cash amount of Rs. 89,360/ was recovered from the possession of A-7 which was stated to be the sale proceed for the sale of charas. In any case, no personal search of a human body of A-7 had taken place, and therefore, it is not possible for us to accept the contention that there was any breach of the provisions of section 50(4) of the Act. Hence, the said contention also fails.

51. Learned counsel for A-7 next contended that the position of A-7 was as that of the wife of A-6 who was an addicted person of consuming charas. In his submission, the main business even as per prosecution was of A-6 and it was A-6 indulging into the prohibited activity. The substance of charas and currency as such were found from A-6 and the position of A-7 was as that of the wife of A-6. A-7 being wife of A-6 would be in the house by way of natural conduct, and therefore, the mere presence of A-7 is not sufficient to rope and involve A-7 for the commission of such a serious crime. He submitted that A-7 being wife of A-6 by way of her natural conduct would assist her husband for any household work or otherwise. Therefore, it was submitted that if the status of A-7 is considered, it cannot be said that there was any active role played by A-7 for commission of the crime, and therefore, benefit be extended to her.

52. Whereas, Mr. KT Dave learned counsel appearing for NCB/original complainant submitted that it is not a case where there is only mere presence of A-7, but if the same is taken into consideration with the confessional statements of A-6 and A-7 at Exh.109 and 110 read with the other evidence led on behalf of the prosecution, it appears that A-7 was dealing in the business of purchase and sale of charas and she having played the active role. Merely because she was wife of A-6, it would not be a case for holding A-7 as not guilty at all. In his submission, the presence of A-7 is to be considered with the other evidence including that she went to pick-up Raju Siddh A-3 when he came for delivery of charas and the sale proceeds was also found from her possession. Therefore, it was submitted that such aspect that A-7 was the wife of A-6, would not be much relevant for showing the innocence of A-7.

53. We are in agreement with the contention raised by Mr. Bhatt to the extent that if wife is present at the house of the husband, the same is by way of her natural conduct. We also agree that if the wife is assisting her husband in doing the business or helping her in doing any work including household, the same is also by way of natural conduct, but one rider has to be kept in mind that such must be a lawful business and not any business resulting into the offence under any law. At the same time, it is also true that if the wife or any family members renders normal assistance without getting involvement into such business, the wife or any family members cannot be said as having committed crime in such assistance so rendered. Had it been the case where there was no statement under section 67 of the Act of A-7 Exh. 110 and the substance charas found from the house where her husband was doing business of sale and purchase and the currency found from the house though may be in possession of wife, it might stand on different footing and different consideration. But in the present case, there are two statements, one is of A-6 Exh. 109 dated 19.9.2003 and another is of A-7 Exh.

110 dated 19.9.2003. It is in light of both the statements, one has to examine as to whether the role of A-7 was so active, that is, exceeding her natural conduct as wife of A-6 or not. Further, while considering the aspects of guilt, it is required to be kept in mind that the statement of co-accused independently cannot be the basis being sufficient proof for the guilt of other co-accused. There has to be a corroborative and or independent material for proving the case against a particular accused and such evidence has to come on record. A-6 in his statement under section 67 of the Act, so far as role of A-7 is concerned, has stated that he had asked his wife A-7 to bring Raju Siddh A-3 and she had brought him to the house. In our view, such aspects if considered independently, can be termed as natural conduct of A-7 being wife of A-6. The another aspect mentioned by A-6 in his statement for the role of A-7 is that on 18.9.2003 when the officers visited at 1.00 O'clock at the house of A-6, two dealers of charas and his wife were present. Thereafter, when they were calculating and giving delivery of charas, the officers came and search and seizure was made and the amount of Rs. 89,360/- was recovered from his wife. The pertinent aspect is that so far as receipt of the delivery of charas by A-6 from A-1, the role is played by A-6 and the consideration is paid by A-6 of Rs. 1,32,000/- to Raju Siddh A-3 and A-3 conveyed that A-6 may talk to A-1, and thereafter, A-6 had gone to leave Raju Siddh A-3 outside. Therefore, the purchase of charas was made by A-6 and the consideration was also paid by A-

6. As observed earlier, the presence of A-7 in the house could not be said to be unnatural and even if it is considered that the amount of Rs. 89,360/- were given by A-6 to A-7, and consequently, at the time of search and seizure, the same was found from the possession of A-7, it cannot be said that such conduct for retaining the amount of husband by wife was unnatural. There is no specific other role stated by A-6 in his statement for involvement of A-7, but the only statement made at the end in last but second para is that he was doing the business of charas and he has done the business of charas to earn money and he has admitted that the sale and purchase of charas or storage of charas is an offence. While stating that, it has been further stated that his wife was also partner and she was knowing the modus of the business and she was helping him in the business of charas. As observed earlier, A-6 was co-accused though husband , therefore, in accusation made by co-accused under section 67 of the Act, cannot be the sole base for the guilt. Therefore, the aspects of statement recorded under section 67 of the Act of A-7 would also be required to be taken into consideration. A-7 in her statement Exh.110 has stated that on 17.9.2003, Raju Siddh had come to deliver 1.300kg charas and the amount of Rs. 1,32,000/- was paid. It is true that she has stated that “they” paid the amount of Rs. 1,00,000/- but if the said aspect is considered with the statement of A-6 Exh. 109, the amount of Rs. 1,32,000/- is stated to have been paid by him to A-3. Therefore, there is a clear contradiction in the statement of A-6 and A-7 to that extent. Further, in the statement of A-7, she has stated that on 18.3.2003, when A-8 and A-9 came for taking quantity of charas, her husband had prepared four separate packets and one packet to Rajabsha and one packet to Ahmedhusen were to be given, but at that time, the officers came there with other persons and raided the premises and prepared the panchnamas and all the four packets having weight of 10.150kg and cash amount of Rs. 89,360/- was recovered. In our view, the said statement shows that role of A-7 does not in any manner refer to her individual role. It has been further stated by A-7 in her statement that she knows that the charas is a substance whose sale or purchase and storage is an offence, but they because of temptation of money.... (torn out) quantity of charas. Much emphasis was led by Mr. Dave learned counsel for NCB/original complainant that the language used was “they” - “ame” at different places by A-6 in his statement or A-7 in her statement, and therefore, it may be deemed that both have played role, namely A-6 and A-7.

16.3.2012.

54. We are not at all impressed by the said contention that merely because the word used by husband or wife as “they” and not “himself” or “herself”, such a link of guilt can be gathered therefrom. It is true that as per the prosecution case, it was a matter of conspiracy for sale and purchase of charas, and therefore, the statement of co-accused including confessional statements, if any, may have relevance for the purpose of getting clue or some light to find out the guilt of other co-accused in view of section 10 of the Evidence Act, but the application for section 10 of the Evidence Act has to remain to that extent only of the relevancy or clue or some light, but thereafter, if the court is to hold co-accused guilty, it would be required for the prosecution to show any independent material for proving the case against the said co-accused, or in any case, further corroboration by way of any independent material. Merely because charas is recovered from the house of husband or that the money for sale proceeds of the charas were received by husband and handed over to wife and when the officer raided, the rupees were recovered, it cannot be said that there is active participation in the conspiracy as sought to be canvassed. As observed earlier, certain behaviour or the conduct of wife or the family members may be son or daughter, while residing under the same roof, is going to be natural. Such behaviour is to be considered keeping in view also the social atmosphere in the family and also the way of living. If in a small family comprising of husband, wife and the children, if the husband is indulging into any prohibited activity, the assistance rendered by the wife or the family members without any consideration but by way of discharge of the obligation as wife or son or daughter, in normal circumstances, cannot be termed as a member of conspiracy nor can be termed as a partnership, as sought to be canvassed so as to hold them guilty or so as to treat as conspiracy for commission of offences. It does not mean that if a very very strong case is made out by documentary evidence with full proof of sharing the activity, that too, by receiving the independent consideration, or otherwise the matter cannot be considered for tracing the guilt but there has to be a strong evidence beyond reasonable doubt on record for mens-rea or active participation of the wife or other family members for such purpose. Considering the aforesaid with the facts of the present case, we find that it is not possible to record the conclusion that the prosecution has been able to prove the case against A-7 for the charged offence beyond reasonable doubt since her presence in the house was in capacity as wife of A-6 and her so- called assistance could not be said to be unnatural in capacity as wife of A-6. Under these peculiar circumstances, we find that the benefit of doubt about the full and active participation for independent consideration be made available to A-7. Hence, we find that the reasonings recorded by the learned Special Judge for holding A-7 guilty for the charged offence, cannot be sustained since it could not be said that the prosecution successfully proved the case against A-7 beyond reasonable doubt. We may also make it clear that in the cases under the NDPS Act, the statement recorded under section 67 of the Act even in custody, in view of the aforesaid decision of the Apex Court in the case of Rajkumar Karwal vs. Union of India and Kanhaiyalal vs. Union of India (supra), are admissible in evidence. Therefore, the consequences would be serious and with heavy penalty. Hence, we find that while appreciating the evidence led by the prosecution including the statement recorded under section 67 of the Act, it is required for the court to bear in mind the natural conduct of the wife or family members of the principal accused or the head of the family who has been charged with the offences under the NDPS Act. The same as having been not considered by the learned Special Judge, we find it appropriate to consider and such could be termed as the additional reason for interfering with the findings recorded by the learned Special judge for holding A-7 guilty for the charged offences.

55. The learned advocate Mr. Anil Mehta for A-9 contended that the learned Judge has not at all taken into consideration the defence of A-9 that he was present at the house of A-6 for the purpose of selling books of religions. He also submitted that nothing was found from the actual physical possession of A-9. He submitted that the confessional statement may not be considered by the Court for the purpose of proving the guilt by the prosecution of A-9, and therefore, it was submitted that the benefit be given to A-9 since the prosecution has failed to prove the case beyond reasonable doubt against A-9.

56. As observed earlier, it is not a matter where statement made under section 67 of the Act of A-9 Exh.112 deserves to be excluded for the purpose of considering the case of the prosecution against A-9. The statement Exh. 112 of A-9 establishes that the presence of A-9 at the house of A-6 was for the purpose of purchasing charas and part consideration was also paid of Rs.13000/-, not only that, but as stated by him, he used to make small balls of charas and was selling at Rs.20/- per ball. A-9 has not even retracted from the statement at any point of time, therefore, we find that it is not a matter where prosecution has not been able to prove the case against A-9 for the charged offences. It is true that nothing was recovered from A-9 by way of substance or any currency, but on the face of statement under section 67 of the Act, it cannot be said that the presence of A-9 at the house of A-6 was for the purpose other than for purchase and sale of charas. Even if it is considered for the sake of convenience of examination that the amount of Rs. 13,000/-was paid by A-9 to A-6 excluding the deal finalise for 2.5kg charas and the costs considered proportionately, then also, it is beyond small quantity and proportionately the quantity was of 400 to 500 grams of charas, equivalent to the value of Rs. 13,000/- considering Rs. 30,000/- per kg., being the value came out from the statements of other co-accused read with the statement of A-9 himself. In any case, A-9 in his statement under section 67 of the Act, has confirmed for agreeing to purchase 2.5kg of charas with the back ground that he was selling small balls of charas at Rs. 20/- per ball. Therefore, it cannot be said that the prosecution has failed to prove the case against A-9 for the charged offences.

57. The aforesaid observations and discussions, shows that the finding recorded by the learned Special Judge for holding all the accused, except A-7, as guilty for the charged offences cannot be said as erroneous since the prosecution had proved the case against A-3, A-4, A-5, A-6, A-8 and A-9.

58. This is now leads us to examine the aspects of holding guilty of A-1 as per section 31 and/or 31A of NDPS Act. Section 31 of the Act provides for enhanced sentences for the offences under the Act and after previous conviction and as per the provisions of section 31 of the Act, the punishment of rigorous imprisonment can be for a term which may extend to one-half of the maximum term of punishment and the fine also can be one-half of the maximum amount of fine. However, section 31 of the Act is wide enough to cover all offences under NDPS Act, when committed second time with the previous back ground of commission of offence and conviction in past.

59. Section 31A of the NDPS Act provides for death penalty after previous conviction, but the pertinent aspect is that section 31A is not applicable to all offences under the Act, but is applicable to only certain types of offences, namely, under section 19, 24 and 27 with the further clarification that the quantity involved in such previous conviction and also the second conviction has to be for commercial quantity of any narcotic drug or psychotropic substance. Further, the quantity for the purpose of conviction under section 31A when to be convicted second time has to be specified under the table of the respective category or more. Since we are concerned with the present case, Hashish as per the table, the quantity 20kgs or more has to be there so as to attract the provisions of section 31A of the Act. Therefore, while considering the findings so recorded by the learned Special Judge for conviction under section 31A of the Act, the aforesaid aspect is required to be taken into consideration.

60. The examination of the facts of the present case shows that in the complaint, there was reference to the previous conviction of A-1, but the sentences prayed for was under section 31 of the Act and not under section 31A of the Act. The charge which was framed by the learned Special Judge at Exh. 16 vide para-5, did include the offence under section 31 of the Act committed by A-1, since he was convicted earlier on 22.3.1990 and was imposed the sentence of 10 years. The plea to that charge Exh. 16 was taken by the learned Special Judge on 19.10.2004 and A-1 had not admitted the guilt including for the charge of section 31 of the Act. On 14.2.2008, the learned Special Judge recorded a finding for holding all the accused, except A-2 who was absconding accused, guilty for the offences under section 20(b)2(c) and 29 of the Act. Thereafter, all the accused were heard for sentences and on 18.2.2008 the learned Special Judge imposed sentences as referred to hereinabove upon A-3 to A-9. but, as there was charge under section 31 of the Act, no sentence was imposed upon A-1 on 18.2.2008. However, in the meantime, after the pronouncement of the judgment in part for holding guilty of the accused, except A-2, on 14.2.2008, application Exh. 203 was submitted on behalf of the NCB for framing additional charge under section 31A of the Act and that application was submitted under section 216 of CrPC. The learned Special Judge had passed the order below the said application on 19.2.2008 for fixing the hearing. The objections were also filed by A-1 on 18.2.2008. On 19.2.2008 application Exh.207 was submitted by NCB/original complainant and together with the said application, certified copy of the judgment dated 22.3.1990 in Sessions Case No. 278/1988 was produced and the prayer was made to exhibit the said certified copy. On behalf of A-1, endorsement was made “seen” and on 19.2.2008, the learned Special Judge passed the order of allowing the production and for exhibition of the certified copy of the judgment of Sessions Case No. 278/1988. It appears that thereafter, on 22.8.2008 the learned Special Judge passed the order below application Exh.

203 for additional charge under section 31A of the Act and allowed the application for additional charge and dismissed the objections of A-1. Thereafter, on the very day, i.e., on 22.8.2008, additional charge under section 31A was framed and the plea of A-1 for the additional charge was recorded on the very day, i.e., on 22.8.2008, wherein, A-1 did not admit the guilt. It is a fact that thereafter, no witnesses were examined and the statement under section 313 of Code of Criminal Procedure for the additional charge of A-1 was recorded, whereby, the question was put to him that it appears from the certified copy of the judgment of Sessions Case No. 278/1988 Exh.208 that he was convicted for the offence of possessing 40kgs of charas – commercial quantity and he was held guilty and the sentence was imposed for 10 years R/I with fine of Rs. 1 lac and in response thereto, A-1 had replied that he did not keep anything in railway clock room, the same is false, and except the same, he does want to say anything. The learned Special Judge, thereafter, heard complainant as well as A-1 for sentence and as observed earlier, for the offence under section 29 of the Act, the sentence has been imposed upon A-1 for 10 years R/I with the fine of Rs.

1 lac and for the offence under section 20(2)(b)(C) read with section 31A, death sentence has been imposed upon A-1.

61. The question may be required to be examined as to whether the proper procedure has been followed after framing of the charge under section 31 A of the Act, and consequently, whether death sentence has been imposed in accordance with law or not. We may state that so far as the sentence imposed upon A-1 for the offence under section 29 of the Act by holding him guilty, in view of the reasons recorded by us hereinabove, the same, once he was held guilty could not be said to be improper considering the gravity of the offence and the huge quantity of the charas found from his possession and he being the main person dealing in purchase and sale and storage of huge quantity of charas. However, the aspect further requires to be examined is, whether A-1 could be convicted under section 31A or not or whether conviction and sentence is called for any change less then section 31A of the Act, considering the facts and circumstances of the case.

62. Section 216 of the Code of Criminal Procedure, permits the court to add or alter any charge at any time before the judgment is pronounced. Therefore, framing of the charge under section 31A on 22.2.2008 could not be said as unwarranted in law. It further appears that section 236 of CrPC expressly deals with the procedure to be followed in case of previous conviction. The same reads as under:

“236. In a case where a previous conviction is charged under the provisions of sub-section (7) of Section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under Section 229 or Section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon.”

63. The aforesaid provisions shows that in a case where previous conviction is charged and the accused does not admit that he has been previously convicted as alleged for the charge, the Judge may, after conviction of the said accused under section 229 or 235 take evidence in respect of the alleged previous conviction and shall record the finding thereof.

64. The manner and mode of proof of previous conviction is provided under section 298 of CrPC, which reads as under:

298. In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force-

(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or

(b) in case of a conviction, either by a certificate signed by the officer in-charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to identity of the accused person with the person so convicted or acquitted.”

65. The aforesaid provisions shows that the extract of certified copy under the hand of the officer of the record of the Court in which such conviction was held is the mode in addition to any other mode provided by law for proving the previous conviction. Therefore, at the first brush, one might feel that when the certified copy was already produced on 19.2.2008, the requirement of section 298 of CrPC could be said to be as satisfied. However, the relevant and pertinent aspect is that on 19.2.2008 when the certified copy of previous conviction was exhibited and taken in evidence, there was no charge under section 31A of the Act and the only charge remained was under section 31 of the Act. Since the charge under section 31 of the Act was already framed on 19.10.2004, and for which, the plea was also recorded. After the additional charge under sec. 31A was framed on 22.2.2008, the plea is recorded for the first time for the additional charge of section 31A on 22.2.2008 and once the guilt was not admitted, the evidence, if any, on behalf of the prosecution including that of production of certified copy of the judgment of previous conviction could be thereafter, that is, after 22.2.2008 and not prior to the framing of the charge under section 31A of the Act. As per the above referred section 236 of CrPC if the accused does not admit the previous conviction, the language is that “the evidence is to be taken in respect of alleged previous conviction.” Therefore, such evidence has got to be recorded or to be taken on record only after the plea of A-1 was recorded. It is an admitted position that no evidence whatsoever is recorded after the additional charge under section 31A was framed and the plea recorded for such charge on 22.2.2008. In absence of the evidence having been recorded after framing of the charge under section 31A of the Act, the finding could not be recorded by the learned Special Judge for conviction under section 31A of the Act based on the evidence produced by the prosecution for the previous conviction prior to the framing of the charge under section 31A of the Act. Under the circumstances, we find that as the mandatory procedure provided under section 236 of CrPC for taking evidence after the plea was recorded for the charge of under section 31A of the Act, the conviction by the learned Special Judge under section 31A of the Act cannot be maintained. It is hardly required to be stated that in case of death sentence, there has to be strict adherence to the mandatory procedure. If after the plea is recorded and the accused has not admitted the guilt and no evidence is led by the complainant/prosecution, it may result into the case of no evidence in accordance with the procedure laid down, and consequently, cannot be considered in law. Hence, we find that the conviction recorded and the sentence imposed under section 31A of the Act by the learned Special Judge for imposing death sentence cannot be maintained and deserves to be set aside.

66. But the aforesaid cannot be said for the charge under section 31 of the Act based on previous conviction, and the reason being, as stated above, charge under section 31 of the Act did not exist at the time when the charge was framed first time in the year 2004. Not only that, but the plea as stated above for the charge under section 31 was recorded on 19.10.2004, wherein, A-1 did not admit the guilt.

Thereafter, the evidence for previous conviction after holding guilty to A-1 on 14.2.2008 came on record on 19.2.2008 and by way of compliance in accordance with the provisions of section 298 of CrPC, the statement has also been recorded under section 313 of CrPC based on said evidence thereafter i.e. on 22.2.2008. It is, thereafter, the learned Special Judge has heard A-1 as well the prosecution/original complainant for sentence. Therefore, we find that the learned Judge could convict and impose sentence upon A-1 for the offence under section 20(b)(ii)(C) read with section 31 of the Act. Even otherwise also, it is by now well settled that the accused can be convicted for lesser charge when higher charge did exist. Under the circumstances, we find it appropriate to convict A-1 for the offence under section 20(b)(ii)(C) read with section 31 of the NDPS Act. The minimum sentence provided for the offence under section 20(b)(ii)(C) is 10 years R/I but it may extend to 20 years R/I with fine not less than Rs. 1 lac and it may extend to 2 lacs when the offence is committed for the first time of commercial quantity. Under the circumstances, while imposing the sentence if one-half times is considered, the sentence, can be minimum of 15 years and maximum of 30 years with the minimum fine of Rs. 1.50 lacs and maximum fine of Rs. 3 lacs. Under the circumstances, keeping in view that at present A-1 is aged 71 years on the basis of his service record of Army Card and service book which is a part of the record, his birth date is 2.8.1941, we find it appropriate to impose sentence upon him for 20 years R/I with the fine of Rs. 1,50,000/- and one year S/I for default in payment of fine. Under the circumstances, the sentence imposed

under section 29 of the NDPS Act for 10 years RI with fine of Rs. 1 lac and sentence under section 20(b)(ii) (C) read with section 31 of the NDPS Act for 20 years R/I with the fine of Rs. 1.50 lacs and one year S/I for default in payment of fine, and both the sentences shall run concurrently, and A-1 shall also be entitled to the set-off for the period during which he has remained in jail after arrest.

67. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Special Judge in Sessions Case No. 69/2004 for A-3 (Appellant of Criminal Appeal No. 1564/2008) and A-9 (Appellant of Criminal Appeal No. 2945/2008) for conviction and sentence is hereby confirmed. Hence, both the appeals stand dismissed.

68. However, so far as A-4 (Appellant of Criminal Appeal No. 1562/2008) is concerned, considering the facts and circumstances, we find that he was only used as a labourer for petty charges and otherwise he has not received any consideration and he was being paid consideration of Rs. 850/- only. Therefore, the gravity of offence, in our view, is not at par with the offence committed by A-3 and A-9. Further, personal mitigating circumstances are required to be considered. He is a very poor carpenter and doing labour work. Hence, we find it appropriate to impose sentence of 8 years R/I with fine of Rs. 80,000/- and five months S/I for default in payment of fine for both the offences under section 20(b), 2(c) as well as for the offence under section 29 of the NDPS Act, while confirming the finding for holding A-4 as guilty for the said offences. Consequently, the total sentences upon A-4 shall be 8 years R/I with fine of Rs. 80,000/- and five months S/I for default in payment of fine for both the offences and not separately, as imposed by the learned Special Judge.

69. In view of the finding recorded by us hereinabove, we find that the conviction recorded and the sentence imposed upon A-7 (Appellant of Criminal Appeal No. 3145/2008) by the learned Special Judge deserves to be set aside. Hence, set aside. A-7 Kamrunisa Gulamnabi Mansuri be set at liberty forthwith, unless her presence is required for any lawful purpose. Appeal of A-7 Kamrunisa Gulamnabi Mansuri being Criminal Appeal No. 3145/2008 shall stand allowed to the aforesaid extent.

70. In view of the aforesaid observations and discussions, so far as A-1 (Appellant of Criminal Appeal No. 1297/2008) is concerned, the judgment and order of the learned Special Judge for holding him guilty for the offence under section 29 of the NDPS Act and the sentence imposed upon him is maintained and not interfered with. However, in place of death sentence imposed by the learned Special Judge for the offence under section 20(b)(ii)(C) read with section 31A of the NDPS Act is modified to the effect that A-1 shall stand convicted for the offence under section 20(b)(ii)(C) read with section 31 of the NDPS Act and sentence imposed upon him will be 20 years R/I with the fine of Rs. 1,50,000/- and one year S/I for default in payment of fine. Appeal of A-1 being Criminal Appeal No. 1297/2008 shall stand allowed to the aforesaid extent.

71. In view of the reasons recorded by us hereinabove, since the death sentence imposed by the learned Special Judge is set aside, consequently, the question of confirmation of death sentence imposed by the learned Special Judge under section 31A of the NDPS Act would not remain. Hence, it is observed that the death sentence imposed by the learned Special Judge for the offence under section 31A of the NDPS Act is not confirmed. The Criminal Confirmation Case shall stand disposed of accordingly.

72. Criminal Misc. Application No. 2841/2012 shall also stand disposed of as no order deserves to be passed considering the facts and circumstances.

[JAYANT PATEL, J.] [PARESH UPADHYAY, J.] mandora/