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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)