GIRISH RAGHUNATH MEHTA vs. INSPECTOR OF CUSTOMS

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,

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.

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.

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.

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.

Learned counsel for the appellant has taken the Court through the evidence on record and submitted that conviction and sentence awarded to the appellant was unsustainable. There are discrepancies in recording of prior information, resulting in violation of mandatory requirement of Section 42 of the Act. Reference was made to intelligence note, Ex.-47, and statement of PW4 to submit that information was received one or two days prior to 26th February, 2004 during investigation of an earlier case while it was recorded only on 26th February, 2004 and not immediately. There are contradictions in time and manner of recording of information, Ex.18, while there is another note which is contradictory. Reliance has been placed on

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

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

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

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

The appeals are dismissed. ………………………………………………J. ( C. NAGAPPAN ) ………………………………………………J. ( ADARSH KUMAR GOEL ) NEW DELHI; SEPTEMBER 07, 2016. Page 11 JUDGMENT 11 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.