GIRISH RAGHUNATH MEHTA Vs INSPECTOR OF CUSTOMS
Bench: C. NAGAPPAN,ADARSH KUMAR GOEL
Case number: Crl.A. No.-001020-001021 / 2009
Diary number: 23527 / 2008
Advocates: PURUSHOTTAM SHARMA TRIPATHI Vs
ASHA GOPALAN NAIR
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1020 - 1021 OF 2009
GIRISH RAGHUNATH MEHTA …APPELLANT
VERSUS
INSPECTOR OF CUSTOMS AND ANOTHER ...RESPONDENTS
J U D G M E N T
ADARSH KUMAR GOEL, J
1. These appeals have been preferred by the appellant against his
conviction under Section 15 read with Section 8(c) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and
sentence to undergo rigorous imprisonment for four years and to pay
fine of Rs.20,000/-, to further undergo rigorous imprisonment for six
months, in default of payment of fine, for illegal sale of 30 Kgs. of
poppy straw to the co-accused- A-2, who did not have valid licence as
per the Maharashtra NDPS Rules, 1985.
2. Case of the prosecution is that the Inspector of Customs, NCCP
Customs, Mumbai received intelligence information on 26th February,
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2004 that the appellant was selling crushed opium poppy straw
without any bills on cash basis from his premises at 6, Pravin
Chambers, Keshvji Naik Road, Mumbai. Co-accused- Karim Patel was
to purchase 30 kgs. of poppy straw. A raid was organized and Karim
Patel was apprehended with 30 Kgs. of poppy straw. The raid was
conducted by PW1- Bhaskar Shetty, Inspector of Customs, along with
others including PW5- Canute Menezes. The said accused stated that
he had purchased the poppy straw without any bill on cash payment
of Rs.5400/-. On search of the premises belonging to the appellant,
some documents were recovered. Appellant was found in the shop
and stated that he was proprietor and a lady present there was the
manager of the firm. Co-accused- Karim Patel, who was also
brought by the raiding party with it, opened the bag which had
colored powder in a polythene bag. A small quantity was tested on
the Field Testing Kit and result was positive for the presence of opium.
The powder was weighed and found to be 30 Kgs. Three samples of
24 grams each were collected and sealed. Remaining powder was
sealed and kept in the same bag. The label with signatures of
panchas and the investigating officer PW1- Bhaskar Shetty was affixed
on the bag. Co-accused- Karim Patel identified the appellant as the
person who had sold the powder to him without bill on cash payment.
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It is not relevant to mention about the rest of stock of opium kept in
the shop and thereafter recovery of cash amount from the house of
the appellant as conviction of the appellant has been upheld only for
the charge mentioned earlier. Co-accused- Karim Patel also stated
that he had purchased poppy straw powder on several occasions from
the appellant and sold the same.
3. Statement of the appellant was recorded under Section 67 of the
Act on 27th February, 2004 to the effect that he had sold 30 Kgs.
powder to A-2 without receipt and without medical prescription. A-2
did not have valid permit. After completion of investigation, both the
accused were sent up for trial.
4. The prosecution examined 11 witnesses which included
investigating officer who effected recovery of the contraband,
Superintendent of Customs who received information, Assistant
Chemical Examiner, the landlord of the premises in possession of the
appellant as a licensee/ tenant and the PSI of the State Excise.
5. The trial court convicted and sentenced the appellant not only
for the offence mentioned above but also for illegal possession of
commercial quantity of poppy straw powder.
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6. On appeal, the High Court partly allowed the appeal, quashed
and set aside the conviction and sentence for illegal possession of
commercial quantity of poppy straw powder but upheld the conviction
and sentence for illegal sale transaction of 30 kgs. of poppy straw
powder. The High Court also upheld the conviction of co-accused for
abetment of the said offence by purchasing 30 kgs. of poppy straw
powder from the appellant without any valid licence and permit. The
co-accused has not preferred any appeal as stated by the learned
counsel. The appellant has undergone the sentence during pendency
of the proceedings.
7. Learned counsel for the appellant has taken the Court through
the evidence on record and submitted that conviction and sentence
awarded to the appellant was unsustainable. There are discrepancies
in recording of prior information, resulting in violation of mandatory
requirement of Section 42 of the Act. Reference was made to
intelligence note, Ex.-47, and statement of PW4 to submit that
information was received one or two days prior to 26 th February, 2004
during investigation of an earlier case while it was recorded only on
26th February, 2004 and not immediately. There are contradictions in
time and manner of recording of information, Ex.18, while there is
another note which is contradictory. Reliance has been placed on
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Abdul Rashid Ibrahim Mansuri v. State of Gujarat1, State of
Rajasthan v. Jag Raj Singh2 and Sukhdev Singh v. State of
Haryana3. It was further submitted that the gunny bag produced in
Court did not carry the label and the signatures. The same could not
be linked to the appellant. PW2 was unable to say whether the bag
produced had seal or label or not. He also submitted that record of
the samples was not maintained. Panchas were not examined. Same
Panchas were used for several occasions. He also submitted that the
statement of the accused under Section 67 amounted to confession
before police and was not admissible as held in Tofan Singh v. State
of Tamil Nadu4, Union of India v. Bal Mukund5, Raju Premji v.
Customs NER Shillong Unit6 and Noor Aga v. State of Punjab7.
Even if the statement of the appellant under Section 67 was
admissible, it was a weak piece of evidence and had only
corroborative value. No independent witness was joined while
recording the statement. The appellant was in custody at the time of
recording the statement. The statement was not voluntary. Its
contents were not read over to him. A-2 was also in custody and his
statement was also not voluntary. Statement of co-accused could not 1 (2000) 2 SCC 513 2 (2016) 6 SCALE 32 3 (2013) 2 SCC 212 4 (2013) 16 SCC 31 5 (2009) 12 SCC 161 6 (2009) 16 SCC 496 7 (2008) 16 SCC 417
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be taken as substantive evidence. The same could not be relied upon
in view of the decision in Bal Mukund and Raju Premji (supra).
8. Learned counsel for the State supports the conviction and
sentence of the appellant. He submitted that concurrent finding of
the courts below is based on evidence and the same is not liable to be
disturbed in an appeal under Article 136 of the Constitution. It was
pointed out that the contentions advanced by the learned counsel for
the appellant are not shown to have been raised before the High
Court. He next submitted that Section 42 applies only when recovery
is to be effected from a building, conveyance or enclosed place.
Present case is covered by Section 43 as recovery is from a public
place. As regards the plea of absence of label, neither any question
was raised at the time of production of the bag nor the fact of
recovery of the contraband from co-accused is in dispute. Recovery
was proved by independent direct evidence. Co-accused from whom
recovery was effected has not even challenged his conviction. As
regards the record of samples, it is pointed out that the evidence of
the chemical examiner-PW8 is categoric that all the samples were in
sealed condition. The appellant never retracted his statement under
Section 67 to the effect that the contraband recovered from
co-accused was sold by the appellant and that the said co-accused
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had no licence to purchase the contraband and thereby the appellant
contravened the conditions of his licence. He was not in custody
when his statement was recorded as is clear from the statement of
PW2- Gerard Joseph, who recorded the statement.
9. After due consideration, we do not find any merit in the
submissions on behalf of the appellant. Both the courts below have
concurrently held that the appellant was found to have sold the
contraband to the co-accused without any licence. The said finding,
inter alia, is based on the evidence of PW1- Bhaskar Shetty, Inspector
of Customs who seized the contraband from the co-accused- Karim
Patel. Further, the evidence in the form of statement of the appellant
himself (Ex.-20) under Section 67 of the Act before his arrest clearly
shows that the appellant had sold the contraband to the co-accused-
Karim Patel who did not have any licence to purchase thereof. Even
otherwise, the connection of contraband with the appellant was
clearly established after which the burden was on appellant to show
that he had effected sale to an authorized person. Recovery from the
co-accused was from an open place to which Section 42 of the Act is
not attracted. At the time of production of gunny bag no objection
was raised on behalf of the appellant that the bag did not carry any
label or sign of identity. Thus, the absence of label and sign of identity
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could not be presumed. The samples were duly tested by the
chemical analyzer and were found to be intact. There is, thus, no
serious infirmity in the findings recorded by the courts below in
convicting and sentencing the appellant.
10. The contention raised on behalf of the appellant on the basis of
judgments of this Court in Abdul Rashid Ibrahim Mansuri, Jag Raj
Singh and Sukhdev Singh (supra) cannot be accepted. As already
noticed, Section 42 of the Act has no application to the fact situation
of the present case. The said section applies when the contraband
recovered from a building, conveyance or enclosed place. Where
recovery is from a public place, Section 43 applies. This Court
reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra)
and Sajan Abraham v. State of Kerala8 in larger bench judgment in
Sukdev Singh (supra). It was held that in view of technological
advancements, it may not be possible to record information as per the
requirement of Section 42. Strict compliance by the investigating
agency should not be required in an emergency situation so as to
avoid misuse by wrongdoers/ offenders/ drug peddlers9. Whether
there is adequate substantial compliance is a question of fact in each
case. Apart from the finding that present case is governed by Section
8 (2001) 6 SCC 692 9 (2009) 8 SCC 539 - Para 34
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43, there is no ground to interfere with the concurrent finding of the
Courts below that there is adequate compliance of Section 43 of the
Act.
11. Similarly, the contention on the basis of the judgments in Tofan
Singh, Raju Premji and Noor Aga (supra) also cannot be
accepted. There can be no doubt that the Court has to satisfy itself
that the statement under Section 67 was made voluntarily and at a
time when the person making such statement had not been made an
accused. Whether the statement is voluntary and free from
encumbrance has to be judged from the facts and circumstances of
each case. In Tofan Singh (supra), the question whether the
investigating officer investigating the matter under the Act is a police
officer and whether the statement recorded by the investigating
officer under Section 67 of the Act can be treated as a confessional
statement has been referred to the larger Bench. It is not necessary
to go into this aspect in the present case as there is adequate
evidence to prove the sale of the contraband by the appellant for
which co-accused has been convicted and sentenced. The
prosecution version is based not only on the statement under Section
67 but also on the evidence of recovery of the contraband
immediately after sale and the circumstances showing that the
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contraband was sold by the appellant to the co-accused, without any
authorization. Thus, we do not find any ground to interfere with the
conviction and sentence awarded to the appellant.
12. The appeals are dismissed.
………………………………………………J. ( C. NAGAPPAN )
………………………………………………J. ( ADARSH KUMAR GOEL )
NEW DELHI; SEPTEMBER 07, 2016.
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ITEM NO.1A-For JUDGMENT COURT NO.8 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 1020-1021/2009 GIRISH RAGHUNATH MEHTA Appellant(s) VERSUS INSPECTOR OF CUSTOMS & ANR. Respondent(s) Date : 07/09/2016 These appeals were called on for pronouncement of JUDGMENT today.
For Appellant(s) Mr. Purushottam Sharma Tripathi,Adv. For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar,Adv.
Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the Bench comprising Hon'ble Mr. Justice C. Nagappan and His Lordship.
The appeals are dismissed in terms of the Signed Reportable Judgment.
Pending application(s), if any, stand(s) disposed of.
(VINOD KUMAR JHA)
AR-CUM-PS (INDU POKHRIYAL) COURT MASTER
(Signed Reportable judgment is placed on the file)