ISAAC PETER Vs. S.M.SAWANT, SUPERINTENDENT, NCB

JUDGEMENT

(1.) BOTH the above Appeals can be conveniently disposed of by common judgment as they are preferred by original Accused No.2 and Accused No.1 respectively challenging the judgment and order of Special Judge under N.D.P.S. Act, Greater Bombay dated 30th August 1993. By the said judgment and order, the Trial Judge found both the Appellants (hereinafter referred to as Accused) guilty of offences punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 (N.D.P.S. Act for short), read with section 8(c) of the said Act and has sentenced both the Accused to suffer R.I. for 10 years and ordered to pay fine of Rs.1,00,000.00 in default to suffer further R.I. for six months. Both the Accused are also found guilty under section 29 and section 8(c) of the said Act and have been sentenced to suffer R.I. for 10 years and to pay fine of Rs.1,00,000.00 each, in default to suffer further R.I. for six moths. Substantive sentences are directed to run concurrently. Both the Accused were however acquitted of the charge under section 30 of the N.D.P.S. Act and under section 135-A of the Customs Act. Briefly stated, the prosecution case is as follows:- On specific information received by S.M.Sawant, Superintendent of N.C.B. (P.W.1), he effected a raid with his associates in the early hours of 25th April 1990 on Room No.10 of Hotel Juhu and in the presence of panchas recovered a large quantity of heroin viz. 20 Kgs. concealed in 20 aluminum foil bags concealed in the bottoms of 5 cartons containing glass test tubes therein. During the course of search and seizure, it was revealed that the said cartons were collected by Accused No.1 with the help of Accused No.2 from a shop at Princes Street and that Accused No.2 was staying at Hotel Suresha at Chakala, Andheri. Hence a part of the raiding party immediately went to Hotel Suresha in the early hours of 25the April 1990 and found Accused No.2 occupying Room No.504 of the said Hotel. No contraband was found during the search of the said room and personal search of Accused No.2, however, his passport delivery challan dated 9th April 1990, visiting card of M/s Vallabhji Bhika were found and were also seized. Accused No.2 was also found to be in possession of 2 ,700 U.S.Dollars. The documents and currency were seized under the panchanama. After the seizure took place, statement of Accused No.1 was recorded on 26th April 1990. Statement of Accused No.2 was recorded of 25th April 1990 and his further statement was recorded on 26th April 1990 by the concerned N.C.B. Officers in the Officer of N.C.B., Ballard Estate, Bombay under section 67 of the N.D.P.S. Act. During the course of investigation, the N.C.B. Officers also recorded statement of one Rajesh Saraiya, partner of M/s Vallabhji Bhika, a firm situated at Princes Street on 26th April 1990 and further statement on 21st June 1990. The said firm of M/s Vallabhji Bhika was dealing in scientific and surgical instruments. On 26th April 1990, statement of one Girish Purohit was also recorded by N.C.B. Officers. Similarly, during investigation, statement of Hotel Manager of Juhu Hotel viz. Chandrakumar Muzumdar was also recorded.

(2.) THE Accused were charged for having conspired to commit offences punishable under sections 29 read with section 8C, 21 and 23 of the N.D.P.S. Act. They were also charged under section 21 read with section 8C and section 29 of the said Act. Although both the Accused were also charged under section 30 of the N.D.P.S. Act and section 135-A of the Customs Act, they were acquitted of the said charges.

(3.) SHRI Thakare, learned counsel appearing for the Accused No.2 and Shri Solkar, learned Counsel appearing for the Accused No.1 in the aforesaid respective Appeals, submitted that there was non-compliance with the provisions of section 42 of the N.D.P.S. Act as a result whereof, the entire trial had vitiated. it was submitted that although section 42 of the said Act provided that any information received was required to be taken down in writing and copy of the said information was required to be sent forthwith to the immediate superior officer, the same was not done as a result whereof, there was non-compliance of section 42. It was further submitted that there was further non-compliance as search warrant was not obtained although admittedly there was sufficient time between the information received and search and seizure conducted. Lastly, it was submitted that as far as section 42 is concerned, there was nothing to show that P.W.1 had reason to believe that the contraband which was allegedly seized was kept or concealed at the place where the raid had taken place. On behalf of the Appellants, our attention was drawn to the documents which were produced viz, Exhs,10 and 9. Exh.10 which is signed by P.W.1 on 24th April 1990 at 22.00 hours (i.e. 10.00 p.m.) inter alia states that he had recorded a specific information that the Accused No.1 had received 5 cartons in which brown powder of about 20 Kgs. quantity had been concealed and the cartons had been kept in Room No.10 of Juhu hotel, Bombay and that those 5 cartons were likely to be removed from that Hotel. Therefore, he sought direction from the Deputy Director to whom he contacted on telephone. Much more was sought to be made of the fact that the said note nowhere states that the copy of information as required under section 42(2) of the N.D.P.S. Act was sent forthwith to the immediate superior officer. On behalf of the Accused No.2, it was further submitted that there was no mention of Accused No.2 in the said note which was on record. Thus, according to Shri Solkar appearing for Accused No.2, there was a clear violation of section 42 of the said Act. On the other hand, Shri Borulkar, learned Counsel appearing for the State, submitted that the note itself contained the specific information received and full details of the said information were given therein. Not only that but on 25th April 1990, a report was submitted under section 57 of the said Act which inter alia stated that gist of information dated 24th April 1990 recorded by P.W.1 was placed in the file. The said note (Exh.9), according to Shri Borulkar gave further details as to how the Deputy Director of N.C.3 was appraised on telephone in the night of 24th and 25th April 12996, as a result whereof the team of Officers was directed to reach Juhu Hotel and seize contraband weighing 20 Kgs, and also as a follow up action, went to Room No.504 of Hotel Suresha and arrested the Accused No.2. Thus, according to him, section 42 is fully complied with. We have scrutinised both the documents viz. Exhs.9 and 10. In our opinion, the note which is at Exh.10 reproduces the Specific information received by P.W.1 and also records the communication of the information to the Deputy Director on telephone; that his directions were sought and that the same was prepared at 10.00 p.m. Further, the said note bears the acknowledgement of the Deputy Director having received the same on 25th April 1996. The report Exh.9 fully contains not only the gist of information received, but also the fact of Deputy Director having been contacted on phone, his directions sought and the action taken which included search and seizure from the rooms at Juhu Hotel as well as Hotel Suresha. This also bears the signature of the said superior in taken of his having received the same.