A.M.KAPADIA - (1.) This appeal which is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 ('the Code' for short) read with Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) through jail, is directed against a judgment and order dated February 4, 1997 rendered by Special Judge, Kachchh at Bhuj, in Special Case No. 122 of 1994 by which appellants/original accused Nos.1 to 5 ('the accused' for short) have been convicted of the offences under Section 20 (b) (ii) read with Section 29 of the NDPS Act and sentenced to undergo R.I. for 15 years and fine of Rs.1 lakh, i.d., S.I. for two years whereas A-1 and A-4 have also been convicted of the offences punishable under Section 23 read with Section 29 of the NDPS Act and sentenced to undergo R.I. for 15 years and fine of Rs. 1 lakh i.d., S.I. for two years. It is also ordered by the learned Special Judge that both the sentences awarded to A-1 and A-4 to run concurrently and all the five accused are given the benefit of set-off.
(2.) Facts of the case have been detailed in the judgment of the learned Special Judge and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are that: 2.1. One Yashwantsinh Rupsinh (P.W.1), Officer Commanding, BSF Water Wing, in company of Narpatram, S.I., A.K. Devnath, Head Constable, Engine Driver Mandal, Arjun Singh and other officers, on 20.7.1994, while patrolling creek area of Koteshwar, at about 4.30 P.M., saw a wooden boat having engine, in a suspicious condition. When the boat of B.S.F. was seen by the persons fishing in the wooden boat, they tried to run away with their boat. However, since the BSF personnel had a high-speed boat they reached at the wooden boat within 5/6 minutes. The said wooden boat was stopped at the creek by the BSF officers and the persons who were found in the boat were directed to be alighted from it. In the said boat there were five persons. Upon preliminary inquiry they stated that they were Pakistani citizens and they were doing fishing illegally in the water of Indian territory. In the meanwhile, because of low tide, water level receded and the wooden boat in which they were fishing was kept stationary there. A night halt was done there near the creek and all of them were placed under the surveillance of the guards. 2.2. On the next day, i.e., 21.7.1994, P.W.1 and other BSF officers reached Koteshwar Jetty around 9 A.M. and alighted there from the boat alongwith them. During the inquiry made by P.W.1 with them, he informed them that if they give information regarding smuggling or some illegal activities which may be known to them, they would be released. Thereupon they told that if they were to be released they would show something to the BSF personnel. Thereupon, Husen Malad, A-1 was taken in the BSF Boat with PW 1 and they went in creek area. As per information given by A-1 the boat was taken to Vaniya Vadi creek area where he showed Charas secreted in mud which was recovered. Thereafter around 5 P.M. PW -1 and other BSF officers came back to BSF Camp at Koteshwar with charas. In the BSF camp P.W.1 instructed his subordinate Inspector Tulshasing to inform the fact of recovery of Charas to the Inspector of Customs. Accordingly, this fact was informed to the Customs Department and pursuant thereto Sanjay Baviskar, Customs Inspector and N.C. Bildani, Customs Superintendent came alongwith panch witnesses. Muddamal Charas was thereafter seized after following due procedure and after making panchnama in presence of Panchas. During the aforesaid procedure, police from Narayan Sarovar Police Station reached there and they were handed over to Narayan Sarovar police on 21.7.1994 itself. 2.3. Initially, during the pendency of investigation into this case, complaint for violation of provisions of the Foreigners Act, 1946 and the Indian Passport Regulations Act was filed against the accused. Thereafter Customs Officer made an application on 6.8.1994 before learned Chief Judicial Magistrate, Kachchh at Bhuj for custody of the accused for the purpose of inquiry which was granted. Pursuant to the order passed by the learned Chief Judicial Magistrate, Kachchh at Bhuj, the Customs Department was given the custody of the accused on 7.8.1994. Statements of the accused under Section 108 of the Customs Act and under Section 67 of the NDPS Act were recorded on the same day. Second statement of A-1 was recorded on 8.8.1994 and his third statement was recorded on 9.8.1994. Second statement of A-2 was recorded on 9.8.1994. No further statement of other accused was recorded. 2.4. On 8.8.1994 formal arrest of the accused was made for violation of the provisions of the NDPS Act by the Customs Department and arrest report was submitted to the Assistant Commissioner of Customs on 8.8.1994 itself. During the investigation, report of Forensic Science Laboratory ('FSL' or short) on the sample which was collected in presence of panchas and sent for analysis was received which revealed that the contraband article was Charas. On the basis of the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act it was divulged that all the accused have committed offence under the provisions of the NDPS Act and, therefore, a written complaint for the offences punishable under Sections 20, 23 and 30 of the NDPS Act came to be filed by K.S. Joshi, the then Superintendent of Customs, Kachchh at Bhuj on behalf of the Union of India, in the Court of Special Judge (Sessions Judge), Kachchh at Bhuj which was registered as Special Case No. 122 of 1994. Alongwith the complaint, list of documents like Panchnama, seizure report under Section 57 of the NDPS Act, statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act, arrest report, inventory report and FSL report, was also produced. 2.5. The learned Special Judge, on the basis of the averments and allegations made in the complaint, framed charge against all the accused at Ex.9 for commission of the offences punishable under Sections 20 (b) (ii), 23, 29 and 30 of the NDPS Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. 2.6. In order to bring home the charge framed against the accused, prosecution has examined following witnesses and relied upon their oral testimonies: P.W.1 - Yashwantsinh Rupsinh - Officer Commanding, BSF, Water Wing, Bhuj- Ex.21. P.W.2 - Sava Vela Maheshwari - Ex.25. P.W.3 - Mulji Khimji Joshi - Panch No.2 - Ex. 27. P.W.4 - Narendra Chandumal, Superintendent of Customs, Kandla - Ex. 28. 2.7. Prosecution also placed reliance on the following documents to prove the culpability of the accused: Sr. Particulars of documents Ex. No. No. --------------------------------------------------------- 1. Copy of letter F.No.Elops/Seizure/KOT/ 94 dated 21.7.1994 of 141 BN BSF addressed to the Customs Officer, Narayan Sarovar, Kutch. 29 2.Original seizure panchnama prepared in presence of panch witness Sava Vela Maheshwari and Mulji Khimji Maheshwari before N.C. Bildani, Superintendent of Customs. 30 3.Copy of letter F.No.VII/10-1/KOT/ 94/702 of Inspector of Customs, Koteshwar addressed to Incharge Police Station, Narayan Sarovar dated 22.7.1994. 31 4.Original report of seizure u/s. 57 of NDPS Act submitted by N.C. Bildani, Superintendent of Customs, Gadhuli to the Assistant Collector of Customs, Bhuj dated 22.7.1994. 32 5.Copy of letter F.No.LIB/BA/2665/94 of DSP, Bhuj addressed to the Assistant Collector, Customs, Bhuj dated 6.8.1994. 35 6.Copy of application in the Court of CJM, Bhuj (K) bearing F.No.VIII/17-8/ LEGAL/94 for the transfer of custody of five Pak nationals, dated 6.8.1994. 36 7.Copy of letter F.No. VIII/17-8/LEGAL/ 94 addressed to Superintendent of Sub Jail, Nakhatrana of Superintendent of Customs, Bhuj dated 6.8.1994 37 8.Original statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 108 of the Customs Act and under section 67 of NDPS Act dated 7.8.1994. 38 9.Original statement of Siddique Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of the NDPS Act and 108 of the Customs Act dated 7.8.1994. 39 10.Original statement of Aechar Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of the Customs Act dated 7.8.1994. 40 11.Original statement of Khemu Alaya Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of the Customs Act dated 7.8.1994. 42 12.Original statement of Hanif Ishaque Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 7.8.1994. 41 13.Original further statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 8.8.1994. 43 14.Original further statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 9.8.1994. 44 15.Original further statement of Siddique Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs Act dated 9.8.1994. 45 16.Report of arrest under Section 57 of NDPS Act to the Assistant Collector, Customs, Bhuj by A.R.Chavda, Inspector of Customs, Gadhuli dated 8.8.1994. 46 17.Copy of NCB 1 (Test Report) sent to FSL, Ahmedabad for testing dated 22.7.1994, alongwith the forwarding letter and its dated receipt 33 18.Inventory in original in respect of seized charas prepared before Executive Magistrate, Bhuj as per the provisions of NDPS Act dated 12.9.1994. 47 19.Original test report received from FSL, Ahmedabad alongwith letter addressed to the Superintendent of Customs, RCP, Gadhuli dated 4.10.94. 34 2.8. After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the depositions of the witnesses. Thereafter further statements of the accused were recorded under Section 313 of the Code. In further statement also they denied the prosecution case in toto and reiterated that they are innocent, they have not committed any offence, they are Pakistani citizens doing fishing and without interrogation after beating them their signatures were obtained on blank papers and they have been falsely entrapped in the alleged commission of offences under the NDPS Act. They did not lead any evidence in defence nor they examined themselves on oath. 2.9. On appreciation, evaluation and analysis of the evidence adduced by the prosecution, the learned Judge held that the prosecution has proved beyond doubt that all the accused who are Pakistani citizens have illegally under the guise of fishing entered into the water of Indian Territory, near Savla Pir, as per the information supplied by A-1 about Charas, large quantity of Charas weighing 265 Kgs. valued at Rs.1.28 crores was taken out from the place shown by him, and therefore, all the accused were connected with the said illegal trafficking of Charas by aiding each other and thereby they have committed offences under Section 20 (b) (ii) read with Section 29 of the NDPS Act whereas A-1 and A-4 have also committed offences under Section 23 read with Section 29 of the NDPS Act and resultantly the learned Judge has convicted and sentenced the accused to which reference is made in earlier paragraphs of this judgment, which has given rise to the present appeal.
(3.) Mr. G. Ramakrishnan, learned advocate who is appointed by Legal Aid Committee to render assistance to the accused, contended that the prosecution has not been able to establish the involvement and indulgence of the accused in the alleged offence beyond reasonable doubt and the learned Judge has also committed grave error in outrightly believing the so-called evidence of the prosecution which was not tenable in the eye of law. It is emphasised by him that when it is undoubtedly the fact to reckon with that the mandatory as well as directory provisions of law have all been flouted with, no credence can be given to such evidence laid therein by the prosecution as also to the findings of the learned Judge. It is also emphasized by him that there has been clear flouting of the mandatory provisions as well as directory provisions contained under Sections 42 (1) and (2), 55 and 57 of the NDPS Act which in the resultant would render the conviction unsustainable. What is asserted by him is that various provisions of the Code, though directory in nature, have not been complied with and noncompliance of the same would invite adverse inference against the prosecution case. It is also highlighted by him that even several provisions contained in the Constitution of India as well as in Customs Act have not been complied with. According to him, it, therefore, goes to show that means of justice have been taken for granted.;