BIPINBHAI A PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant herein has brought under challenge his conviction under Secs. 23, 24 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the N.D.P.S. Act), and his sentence to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000.00 (Rupees one lakh only), in default to undergo imprisonment for a period of 3 months on each of the charges as per the judgment and order dated 22-1-1991 rendered by the learned Addl. Sessions Judge, Kheda at Nadiad in Sessions Case No. 155 of 1989.

(2.) The committal case to the Sessions Court originated from the complaint Exh. 46 filed by Mr. C. R. Desai, Superintendent of Customs (Preventive), Ahmedabad bearing Criminal Case No. 1582 of 1989 in the Court of the Chief Judicial Magistrate at Nadiad. According to the complaint when Mr. R. N. Kakkar, Deputy Director, Narcotic Control Bureau, Bombay, received letter from Mr. C. R. Woodward, Drug Liaision Officer, Bombay, on 8-2-1989 informing him about the two album type books containing photographs of padded plastic covers left by one Mr. Rajnikant Patel with Mr. Dilip and Kamlesh and the said books suspected to contain narcotic drug, Mr. Kakkar passed on the said information to Mr. P. N. Vithaldas, Additional Collector of Customs (Prev.) Ahmedabad, on telephone in the evening on 8-2-1989. The Custom Officers at Ahmedabad started investigation into the matter upon receipt of such information and it transpired that one Mr. Rajnikant Patel alongwith his wife and daughter had been to India from London in the 1st week of January, 1989. They were the holders of British Passports and they are citizens of England. They originally belong to village Bodal, Taluka Borsad, District Kheda. They had come to India for paying visit to their native place and were to go back home in the 1st week of Feburary 1989. They had tickets for London. For confirmation of the tickets they contacted the accused, Mr. Bipinbhai Ashabhai Patel (the appellant herein) carrying on the business of travel agency in the name of Bipco Tours and Travels at Borsad, on or around 25-1-1989. The accused Bipin Ashabhai Patel sent the said tickets through Angadia to Shri Mahesh P. Bhatt, carrying on business in the name and style of Royal Travel Agency, Bombay on 31-1-1989 for confirmation. The tickets were then returned to the accused duly confirmed, on 2- 2-1989. On 3-2-1989 Rajnikant Patel alongwith his brother-in-law Kamlesh went to the office of the accused Bipinbhai Ashabhai Patel at Borsad to make inquiry and he was informed that the tickets were confirmed. When Mr. Rajnikant went to the office of the accused, Mr. Bipinbhai requested him to carry his two books for his friend's relative at London. Kamleshbhai paid Rs. 150.00 by way of service charges to the accused and signed the register. Mr. Rajnikant Patel agreed to take the books for the accused's firend's relative at London and the accused packed the two books with a brown cover and the name of the recipient was written on that cover. That name was 'Deepak Amin, 9671246, London, U. K.' The accused further told Mr. Rajnikant Patel that the recepient of the books would come personally and take delivery from him (Mr. Rajnikant Patel). When Mr. Rajnikant Patel agreed to take the books, the accused returned the amount of Rs. 150.00 received by way of service charges, to Mr. Kamlesh. On 3-2-1989 at night Mr. Rajnikant Patel alongwith his family left for Bombay. Mr. Ranjikant Patel felt suspicious about the books and on he having given a cut to one of the books, he found that some brown powder was coming out. He immediately closed it with a bandage strip and gave the books to his brother-in-law Mr. Dilip and Mr. Kamlesh telling them to keep the books with them till he/they would hear from Mr. Rajnikant Patel. Mr. Rajnikant Patel further informed to give the books to Customs Officer or Police Officer when they happened to go to him/ them. Mr. Rajnikant Patel accordingly left with his family to London. At London Air Port Mr. Rajnikant Patel informed the Customs Officers about what he found in the books and with whom he kept the books. That information was passed on by the London Custom Officers to their Drug Liaisoning Officer at Bombay, who in turn passed on the information to Mr. Kakkar, Deputy Director, Narcotic Control Bureau, Bombay, who as aforesaid contacted Mr. Vithaldas, Deputy Collector of Customs (Preventive), Ahmedabad. Mr. C. R. Desai, Superintendent of Customs (Preventive), Ahmedabad alongwith his two Inspectors Mr. M. P. Shah and Mr. A. S. Saiyed went to Borsad and Bodal and contacted Mr. Kamlesh, who produced the aforesaid two books before them. The said books were seized in the presence of Panchas Mr. Piyushbhai Natvarlal Patel of Borsad and Vinubhai Dhulabhai Patel of Borsad. The books were put in Oscar brand suit case which was sealed, with a paper slip signed by Panchas, Dilip, Kamlesh, Seizing Officer Shri M. P. Shah, having been affixed on it and with a Government seal having been applied on it. The suit case was then brought to Ahmedabad. The accused was then brought from Bombay to Ahmedabad on 10-2-1989 during morning hours. After he was brought to the Customs Office where Kamlesh and Dilip were also called, the said suit case was opened in the presence of the accused, Dilip, Kamlesh and two Panchas Mr. Ahmed Husain Shaikh and Abdul Sattar Abdul Gani Shaikh, both of Ahmedabad. From each cover of each book one plastic bag was secured, in all four plastic bags were secured and all the four plastic bags contained brown sugar weighing 860 grams worth Rs. 1 lakh. Three samples were drawn from each bag and each sample weighed 5 grms. In all 12 samples, each of 5 grms., were drawn. Each sample was placed in an envelope and that was sealed with Government seal with a paper slip duly signed by Panchas, accused, Kamlesh and Dilip and the Seizing Officer having been affixed thereon. The remaining brown sugar was kept in the respective plastic bags, which were kept in the suit case alongwith two books and two brown envelopes and sealing material which were opened in office at Ahmedabad. The suit case was again sealed and the slip containing signatures of the Panchas, accused. Kamlesh, Dilip and Seizing Officer was affixed on it and it was sealed. The four samples were sent to the Forensic Science Laboratory at Ahmedabad and four samples were sent to C.R.C.L., New Delhi. The report of the Chemical Analyser revealed that the samples contained Diacetyl Morphine (Heroin). The statement of the accused Bipinbhai Ashabhai Patel was also recorded under S.67 of the N.D.P.S. Act and it transpired that he had received the two books from one Dhirubhai Gohil working with Royal Travel Agency, Bombay run and operated by Mr. Mahesh P. Bhatt and Shailesh N. Bhatt. It further transpired during the investigation that M/s. Mahesh Bhatt, Kishor R. Bhatt and Ashok R. Bhatt and aforesaid Mr. Dhirubhai Gohil were in collusion with the accused Bipinbhai Ashabhai Patel carrying on nefarious activities and on previous occasions also such books were being sent to London through some passengers; some of them were Suryakant Patel, Ritaben Patel, Naliniben Patel. The accused was promised Rs. 1,500.00 to Rs. 2,000.00 per book. The fact that Mr. Suryakant Patel was given a book got support from the letter written by accused-Bipinbhai to Mahesh Bhatt of Royal Travels, Bombay. It accordingly appeared that Mr. Mahesh P. Bhatt, Mr. Shailesh N. Bhatt, Mr. Kishor R. Bhatt and Mr. Ashok R. Bhatt and Dhirubhai had conspired to export brown sugar from India to London and in pursuance of the said conspiracy, the books containing brown sugar were being sent through various passengers. All the aforesaid conspirators were not traceable and were absconding, with the result that the complaint was required to be filed only against the accused (appellant herein), since the complaint could not be delayed for long. Under the aforesaid circumstances the accused was required to be prosecuted under the aforesaid provisions of the N.D.P.S. Act.

(3.) After the receipt of complaint as aforesaid, the leanred Chief Judicial Magistrate committed the case to the Sessions Court. Charge was framed against the accused under the aforesaid provisions of the N.D.P.S. Act. The accused having pleaded not guilty, trial was held before the learned Additional Sessions Judge. The prosecution adduced evidence in the form of - P.W. 1 Mr. Dilipbhai Shivabhai Patel Exh. 14, P.W. 2 Panch witness Mr. Piyushbhai N. Patel Exh. 15, P.W. 3 Mr. Vinubhai Dhulabhai Patel Exh. 17, P.W. 4 Panch witness Mr. Ratilal Bapulal Soni Exh. 18, P.W. 5 Mr. Mahendra Parshotamdas Shah Exh. 20, P.W. 6 Mr. Dayaram Mayaram Thapliyal Exh. 22, P.W. 7 Mr. Mukundbhai Ramanbhai Patel Exh. 24, P.W. 8 Panch witness Mr. Ahmed Husain Kalubhai Exh. 26, P.W. 9 Panch witness Mr. Abdul Sattar Abdul Gani Shaikh Exh. 28, P.W. 10 Mr. Rameshbhai Ramnathan Exh. 29, P.W. 11 Mr. Chandrakant Ratilal Desai Exh. 31, P.W. 12 Mr. Ravindranath R. Kakkar (Kakkad) Exh. 51 and P.W. 13 Mr. Abdul Habibkhan Abdul Mazidkhan Maulavi Exh. 53. Prosecution also placed on record documentary evidence in the form of statements of the accused Exh. 30 and Exh. 36, statement of Mr. Dilipbhai Exh. 33, statement of Mr. Dilipbhai recorded on 10-2-1989 identifying the photograph of the accused Exh. 34, statement of Mr. Kamleshbhai recorded on 10-2-1989 identifying the photograph of the accused Exh. 35, instructions of the Additional Collector of Customs appearing at Exh. 37, communication dated 9-2-1989 addressed by Mr. R. M. Kakkar Exh. 39, communication dated 10-5-1989 from the complainant addressed to the Assistant Collector of Customs, Ahmedabad Exh. 40, the letter with Annexures A and B sent by the complainant by filling in the details with regard to the offence in the relevant form on 12-2-1989 Exh. 41, telex dated 11-2-1989 sent by the Collector of Customs, Ahmedabad to N.C.B., letter dated 14-2-1989 addressed to Forensic Science Laboratory for examination of the samples with Annexures Exh. 43, letter dated 14-2-1989 acknowledging the receipt of the samples by the Forensic Science Laboratory, Ahmedabad Exh. 44, the report of the Forensic Science Laboratory, dated 23-2-1989 Exh. 45, letter authorising Mr. M. P. Shah to carry out search warrant issued by the Assistant Collector of Customs, Ahmedabad Exh. 21, authorisation letter dated 9-2-1989 Exh. 23, the Panchnama made by Mr. M. P. Shah on 9-2-1989 at the house of Mr. Kamlesh Shivabhai and Dilipbhai Shivabhai Exh. 16, the Panchnama dated 9-2-1989 with regard to production of one register and duplicate book by accused's brother Mr. Dineshbhai Ashabhai Patel Exh. 19, and Panchnama dated 10-2-1989 showing taking of samples in presence of the Panchas by Mr. A. M. Maulavi Exh. 27. Exh. 52 is the communication dated 6-11-1989 from Mr. C. R. Woodward, Drug Liaison Officer, H. M. Customs and Excise, Investigation Division, British Deputy High Commission, Bombay to Mr. R. N. Kakkar of Bombay inter alia intimating that three persons Abdul Hameed Khan, Mazhar Hussein and Basharat Ali who were arrested in U. K. for attempted importation of 850 Grms., of heroin seized by Ahmedabad Customs in Borsad, Gujarat were tried and sentenced to imprisonment for 7 years, 7 years and 5 years respectively and fine of 10,217 and 200/- respectively for the first two accused. Certified copy of the statement of Mr. Rajnikant Patel recorded in London has been produced with Exh. 50.