27 Years On, Gujarat High Court Upholds Acquittal In NDPS Case; Says Prosecution Case "Utterly Flawed" Despite Commercial Quantity Drugs
The Gujarat High Court upheld trial court's 1999 order acquitting three persons in an NDPS case, remarking that despite alleged involvement of commercial quantity of drugs the prosecution's case was so utterly flawed that it raised serious doubt on the nature of investigation conducted.
In doing so the court said that neither the owner of the premises from where the contraband was allegedly recovered was not examined nor was the person who took the place on rent added as an accused. This, seemed to indicate either an utter lack of competence of the prosecution team or a deliberate attempt to protect the real accused persons.
A division bench of Justice Hasmukh D Suthar and Justice DN Ray in its order said that after appreciating evidence adduced, the prosecution had failed to establish the guilt of the accused beyond reasonable doubt. It said that the Sessions Court had rightly taken note of material discrepancies and contradictions which go to the root of the prosecution case.
"Upon an independent examination of the findings recorded by the learned Sessions Court, the same appear to be well-reasoned, lawful and in consonance with the evidence on record. Moreover, the learned counsel has not been able to demonstrate any manifest illegality, perversity or material infirmity in the reasoning adopted by the Sessions Court so as to warrant interference," the bench said.
Before concluding the bench remarked that it was "compelled to observe" that the prosecution's case was "so utterly flawed" that inspite of massive commercial quantity of hashish involved in the case, the bench had "serious doubts as to the nature of the investigation conducted by the prosecution".
"To give an example, the absurd case of the prosecution is that 1329 kg. of hashish was found from a rented premises. It is difficult to believe that the owner of the said premises has not even been examined. One Jaydeep Dhinoja, who has allegedly taken the premises on rent has not been arraigned as an accused. These lapses, apart from the ones noted in the impugned judgment and by us, hereinabove, seem to indicate either the utter lack of competence of the entire prosecution team or a deliberate attempt to protect the real accused persons. Unfortunately, the incident is 32 years old and we are unsure whether any investigation into the lapses would serve any purpose and therefore, we rest the case with these observations. It would however be open to the concerned authorities to take such action which they deem necessary and feasible under the circumstances"
The court was hearing an appeal against trial court's order acquitting the accused persons for offences under NDPS Act Sections 8(c)(prohibition over production, manufacturing, selling, storing etc., of drugs), 20(b)(ii)(Punishment for contravention in relation to cannabis plant and cannabis), 22(Punishment for contravention in relation to psychotropic substances), 23(Punishment for illegal import in to India, export from India or transhipment of narcotic drugs and psychotropic substances), 29 (abetment and criminal conspiracy) and 27A(Punishment for financing illicit traffic and harbouring offenders).
The case of the prosecution originated from intelligence inputs received Directorate of Revenue Intelligence (DRI), Mumbai officers which allegedly indicated a large-scale transportation and illicit trafficking of narcotic substances in and around Surat.
After surveillance for several days, on 18.06.1994 a joint team of DRI officers conducted search and seizure operations at a premises in Surat. It was alleged that the officers recovered a substantial quantity of contraband substance weighing 1329 kilograms and 750 grams packed in 48 bags from the premises being used as a godown.
The prosecution alleged that upon preliminary testing at the site using a field testing kit, the seized substance indicated positive results for hashish. The FSL report also opined that the substance was hashish/charas within the meaning NDPS Act and on botanical examination it was identified as Cannabis Sativa.
The prosecution alleged that the premises was taken on rent and was being utilized for storage purposes, including certain chemical drums. It was alleged that the contraband substance had been transported and stored at the premises on 17.06.1994 by one Jaydeep Dhinoja along with another individual.
The DRI authorities had gathered material indicating involvement of other accused persons in the alleged offences relating to transportation, storage, and illicit trade of the seized contraband.
The bench noted that the prosecution had attempted to prove that accused No.1 Santosh Shetty had given a secret code number and instructed the accused No.3 Harinder Paul to take delivery of the hashish stock being transported in a truck. The court said that it had perused the depositions of accused No.1, accused No.3, as well as depositions of PW9 – Dipakbhai Bhupatbhai Parekh, and that the entire prosecution story rested on these depositions.
The court noted that PW-9 was declared hostile and was cross-examined by the prosecution. Despite this, nothing can be attributed to PW-9 on the allegation that accused No.1 Santosh Shetty had obtained delivery of the hashish stock through accused No.3.
The bench said that PW-9 had categorically stated that he had been practicing as Chartered Accountant in Mumbai since 1987 and that he knew Shetty as they had studied in the same school, however PW-9 did not identify Paul.
In fact the witness had categorically submitted as under “it did not occur that I informed the DRI that Santosh had conveyed to me that the hashish had reached Surat and Harinder Paul has also reached there.”
At this point, the witness was declared hostile and cross-examined at length. In his cross-examination the witness stated that "NCB officers had kept him in custody for three days and tortured him" and the witness's statements on three dates were "dictated" by these officers, and the same were "recorded only under the fear of detention".
"Thus, no evidence has been produced by PW-9 by which it could be said that the PW-9 had supported the prosecution case even to the slightest extent. To counter the allegations made by PW-9 that the officer had coerced and tortured PW-9 to make the aforesaid three statements, the prosecution has not examined the officers involved in recording the statements, to disprove PW-9's allegations. Thus, the aforesaid statements dated 01.07.1994, 05.07.1994 and 06.07.1994 are totally devoid of any evidentiary value. Hence, in our considered opinion, the prosecution has failed to prove that the accused No.1, by giving secret code no. 51750 had caused accused No.3 to take delivery of the hashish stock in question," the court held.
The court found that the trial court had also arrived at the same findings and thus the bench found no reason to revert the trial court's order.
The bench also said that there was no evidence adduced which supported the prosecution's contention that accused Nos. 1 to 3 were engaged in transportation of contraband and that this was revealed from the statements of the co-accused i.e., accused Nos. 2 and 3.
The court said that there was no legal evidence qua involvement of the accused, particularly as to how and from where the contraband was loaded and shifted to the godown and there were no independent witnesses.
"The only evidence led before the learned Sessions Court is that the accused No.2 was present at the time of raid, and it is stated that contraband was seized from his possession but no evidence qua accused Nos. 1 and 3 has been collected. Not only that, the ownership of the godown is also not proved and the owner of the godown is not cited as a witness...Even based on whatever allegations are levelled against the accused and evidence led, it clearly reveals that the prosecution has not followed the mandatory provisions for search and seizure under the NDPS Act. At the time of search, there was a clear violation of Section 42 of the NDPS Act and the learned Sessions Judge has also assigned reason for that qua violation of Sections 42, 50 and 57 of the NDPS Act," the court observed.
The court upheld the acquittal order.
Case title: HI MAJAMUDAR INTELLIGENCE OFFICER v/s SANTOSH PANDURANG SETTY & ORS
R/CRIMINAL APPEAL NO. 1311 of 1999