Ramesh Madhav Bapat, J.
1. Criminal Appeal No. 1684 of 2000 is filed by A-1. Criminal Appeal No. 1768 of 2000 is filed by A-2 and A-5. Criminal Appeal No. 1689 of 2000 is filed by A-3 and A-4 and Criminal Appeal No. 1683 of 2000 is filed by A-6.
2. All the above appeals arise out of Sessions Case No. 164 of 1995 which was decided by the Metropolitan Sessions Judge, Hyderabad and therefore they are disposed of by a common judgment.
3. The accused-appellants herein were facing in all five charges. The first charge against A-3 to A-5 was under section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity ' NDPS ACT'). It is alleged that they were in possession of Psychotropic Substance viz., Methaqualone Tablets. The second charge against A-2 to A-5 was under section 23 read with section 28 of NDPS Act. The allegation was that they attempted to export psychotropic substance from India to Nairobi, South Africa. The third charge against A-1 was under section 2 (viii) (a) (iii) of NDPS Act for the offence punishable under section 27-A of NDPS Act alleging that A-1 directly or indirectly financed A-3 to A-5, who were indulging in illicit trafficking of Psychotropic Substance. The fourth charge was against A-1, A-2 and A-6 for abetting the criminals A-3 to A-5 under sections 22 and 29 of NDPS Act. The 5th charge was against A-1, A-2 and A-6 for abetting the criminals A-3 to A-5 for the offences punishable under sections 23 and 29 of NDPS Act.
4. On evidence the learned Sessions Judge found A-3 to A-5 guilty of the offences punishable under sections 22 and 23 read with section 28 of NDPS Act and they were convicted and sentenced to suffer R.I. for 15 (fifteen) years under each count and also to pay a fine of Rs. One lakh each and in default to suffer R.I. for one year under each count. A-1 was found further guilty of an offence punishable under section 27-A read with section 2(viii)(a)(iii) of NDPS Act and under section 22 read with section 29 and section 23 read with section 29 of NDPS Act. He was further convicted and sentenced to suffer R.I. for 15 (fifteen) years under each count and also to pay a fine of Rs. One lakh and in default to suffer R.I. for one year under each count. A-2 to A-6 were found guilty of the offences punishable under sections 22 read with section 29 and section 23 read with section 29 of NDPS Act and they were convicted and sentenced to suffer R.I for 15 (fifteen) years and also to pay a fine of Rs. One lakh under each count and in default to suffer R.I. for one year under each count. All the sentences imposed upon the accused-appellants herein were made to run concurrently. The period of detention undergone by the accused-appellants herein was given set off against the sentence imposed upon them. Thus, A-1 in all was fined Rs. three lakhs. A-2 to A-6 were fined Rs. two lakhs each. The material object Nos. 1 to 3, 6, 10 to 15, 22 to 58 were ordered to be confiscated to the State. M.Os.4, 5, 7 to 9, 16 to 21 was directed to be returned to the complainant for disposal according to law after the disposal of Sessions Case NO. 240 of 1995.
5. Aggrieved by the aforesaid order of conviction and sentence, the accused-appellants herein have filed different appeals as stated in the foregoing paragraphs of the judgment.
6. The prosecution story can briefly be narrated as follows: The Assistant Director, Directorate of Revenue Intelligence, Hyderabad filed the complaint against A-1 to A-7 alleging that on 3-1-1995 at about 12-00 noon the Assistant Director, Directorate of Revenue Intelligence, Hyderabad along with his Officers searched the premises at Plot No. 20, B.N. Reddy Colony, Road No. 14, Jubilee Hills, Hyderabad in the presence of witnesses and they found 36 number of gunnies covered with coir carpet rolls and when one of the coir carpet rolls was opened, he found that coir carpet was cut opened at various points so as to make cavities and polythene packets containing some tablets were kept concealed and when sample tablet was tested, the result was positive for Methaqualone and as the place was not convenient and for security reasons, 36 number of carpets and other items that were found were shifted to the Office of the Collector of customs, Central Excise, Hyderabad for detailed examination at the Office of the Collector of Customs, Central Excise, Hyderabad. When examined, 34 numbers of carpet rolls were found with polythene packets containing grey colour round tablets and when tested, the results were positive for Methaqualone and hence all the tablets were seized after taking samples and they were sealed.
7. On the same day ie., on 3-1-1995 the Assistant Collector of Central Excise (Preventive), Hyderabad searched the residential premises of Sri Shamraj Moorjani and Lalit Moorjani at Plot No. 102, Road NO. 5, Jubilee Hills, Hyderabad in the presence of mediators and found a purse, some documents, one Maruti Car and Toyoto Corrella Car and they were also seized.
8. On the same day ie., on 3-1-1995 the Officers also searched the premises at Plot No. 25, Old Bowenpally, Secunderabad in the presence of mediators. During the search, they found five number of wooden boxes containing grey coloured tablets with mark 'M' on one side and Swastik mark on the other side. On testing it was found that they were Methaqualone tablets. All the tablets in the boxes were seized after taking samples.
9. On the same day, the Officers of Directorate of Revenue Intelligence also searched the residential premises bearing No. 9-4-84/106, Vinayakar Nilayam, Kakatiya Nagar Colony, Hyderabad. During search, they seized Indian and Foreign currency and 15 grams of grey colour powder. When tested it was found to be Methaqualone powder. That powder was divided into three samples of 5 grams each and they were sealed and seized.
10. On information from the Directorate of Revenue Intelligence, Hyderabad on 3-1-1995, Room No. 302 at Hotel Queen Mary, Cochin was also searched. On search it was found that the said premises were in occupation of A-1 and A-2. When the search of the room was taken, some incriminating documents were recovered and seized. In pursuance of the summons, A-1 and A-2 appeared before the Assistant director, Directorate of Revenue Intelligence, Hyderabad on 4-1-1995. Their statements were recorded.
11. It is the further allegation of the prosecution that on 4-1-1995 at about 8-00 p.m. A-1 to A-6 were arrested and they were produced for remand on 5-1-1995 along with the properties before the Court and interim custody of the property was given. The sample packets were sent to the Central Forensic Science Laboratory, Ramanthapur, Hyderabad for test. As per the report, the seized material was found to be Methaqualone. The further investigation revealed that A-3 and A-4 transported five numbers of wooden boxes in their cars and deposited those boxes in the godown at Bowenpally, Secunderabad.
12. It is further stated by the prosecution in the report that from November 1994 to January, 1995 at various places, like Bombay, V.V. Nagar, Muradabad and Hyderabad all the accused along with known and unknown persons entered into criminal conspiracy to do illegal acts for the purpose of exporting Psychotropic substances from India to Nairobi. A-1 made arrangements for procuring the said Methaqualone through A-7 for the purpose of illegal export from India. A-2 to A-4 received Methaqualone and they arranged for concealment of Methaqualone tablets inside the coir carpet rolls that were seized. A-2 with the help of A-5 made arrangements for transport of Methaqualone tablets to Cochin for further export to Nairobi. A-3 and A-4 with the association of A-6 made arrangements for testing the Methaqualone which was seized and thus it is alleged that they have committed the offence under section 8(c) punishable under sections 22, 23, 25 and 29 of NDPS Act.
13. It is further alleged by the prosecution that A-1 received lorry receipt from A-7 with regard to 36 packets containing Methaqualone and they were received through A-2 at Hyderabad and also received Rs. Ten lakhs from A-7 to be paid to A-2 for exporting the said Methaqualone which were packed inside the coir carpet rolls and they were waiting to be transported from Cochin along with A-2. On 3-1-1995 they were making arrangements for their export to Nairobi and thereby committed an offence under section 8(c) punishable under sections 22, 23, 25 and 29 of NDPS Act.
14. In pursuance of the said conspiracy, A-2 received lorry receipt from M/s. Ghatge Patil Transports on which 36 packets containing Methaqualone tablets which was booked and arranged their receipt by A-3 and A-5 at Hyderabad and organised concealment of the tablets in the coir carpet rolls with the association of A-3 and A-4 and arranged its transport to Cochin with the association of A-5 and they were waiting for the receipt of the goods to export them to Nairobi and thereby committed an offence under section 8(c) punishable under sections 22, 23, 25 and 29 of NDPS Act.
15. It is further stated by the prosecution that in pursuance of the said conspiracy, A-3 associated himself with A-2 and arranged secret accommodation facilities with the association of A-4 for concealment of Methaqualone and made arrangements for receiving 36 boxes through M/s. Ghatge Patil Transports and received five packages containing Methaqualone from Bombay through one M/s. Sangita Parcel services and transported them in his own cars and supervised concealment in coir carpet rolls. A-1 despatched one consignment worth Rs. 3,52,000/- for Mandrax tablets on 26-10-1994 concealing them in sport shoes under Airway Bill No. 07007110875 and seized by South African Police and thereby committed an offence under section 8(c) punishable under sections 22, 23, 25 and 29 of NDPS Act.
16. In pursuance of the said conspiracy, A-5 associated himself with A-2 and made arrangements for transporting through M/s. Kerala Road Transport Corporation for exporting them to Nairobi and thereby committed an offence under section 8(c) punishable under sections 22, 23, 25 and 29 of NDPS Act.
17. In pursuance of the said conspiracy, A-6 alleged to have abetted A-3 in making arrangements for producing and testing Methaqualone. A-7 also made arrangements for A-1 for procurement, possession, import and export of Methaqualone and thus all the accused alleged to have committed the offences alleged against them.
18. Since A-7 could not be apprehended, the case was split up against A-7 and was numbered as Sessions Case No. 240 of 1995.
19. In order to bring guilt to the home of the accused, the prosecution led the evidence of P.Ws.1 to 20. They also produced certain documents and they were marked as Exs.P-1 to P-236. The material objects were marked as M.Os.1 to 58.
20. P.W.1 happened to be Mr. K.C. Sekhar, Assistant Director, Directorate of Revenue Intelligence, Hyderabad. He gathered information that a gang of International Smugglers were dealing with Psychotropic Substance and there was a conspiracy. P.W.1 was responsible for organising various groups to search the premises at Hyderabad, Secunderabad and Cochin simultaneously. How the raid was carried out and what substances were recovered from whom and who were in possession of the premises etc., have been already narrated by this Court in the earlier paragraphs of the judgment.
21. Mr. M.S.R. Murthy, the then Intelligence Officer, was examined as P.W.2. Sri K. Ramesh Babu, Intelligence Officer, Directorate of Revenue Intelligence, was examined as P.W.3. Mr. A. Jayan was examined as P.W.4, who had acted as a mediator. Mr. G. Ramachandra Reddy was examined as P.W.5. Mr. Ramachandra Reddy had assisted P.W.1 at the time of search of the premises by P.W.1. P.Ws.1 to 5 deposed before the trial court that when the premises at B.N. Reddy Colony were knocked by them and after entering into the room, they disclosed their identity to the inmates and they further disclosed them about the purpose of their visit to the said premises and search was carried out. A-4 and A-5 were present in the premises at the time of search. At that juncture they found 36 coir carpet rolls sealed under gunny bags. On suspicion P.W.1 cut and opened one of the carpet rolls and they found that the carpet rolls were cut at seven places and cavities were created so as to conceal the Methaqualone tablets. During search they also discovered certain documents, sealing machine, weighing machine and tapes bundle and they were seized the aforesaid items under a panchanama Ex.P-10. They were produced into the Court and they were marked as M.Os.1 to 3.
22. Sri Lakshmi Ram, the then Assistant Collector, Customs, Hyderabad, was examined as P.W.8. He stated in his evidence that he was called by P.W.1 at his Office and informed him about the activities with regard to Narcotic Substance. He deputed a set of Officers with instructions to conduct search of the premises at Door No. 102, Road No. 5, Jubilee Hills, Hyderabad. Mr. T. Venkateswara Rao was examined as P.W.9 and Mr. Naresh Mohan had accompanied P.W.9. On going to the premises and making the inmates to open the door, they found the presence of Mr. Vishnu Kumar Moorjani, who is A-3 before this Court. They disclosed the reasons for raiding the premises. They noticed two vehicles parked in the compound viz., one Maruti 1000 CC and another red colour Toyota Corrella. On search they found a purse containing the photograph of A-4, which is marked as Ex.P-77. They also found a passport Ex.P-37 in the name of Ravikanth Suryakanth, which contains the photograph of A-3, who was present at the time of search. They seized certain documents inside the premises and they were marked as Ex.P-90 to 96 and 97 to 105. On seizure of the cars etc., a panchanama was drafted, which is produced on record as Ex.P-14. The copy of the panchanama Ex.P14 was given to A-3. On the same day at about 3-00 p.m. they again visited the house and at that time A-3 and Sri Sudershan, watchman of the godown, were present in the house. P.W.8 had seized the R.C. Books of both the vehicles under panchanama Ex.P15 and the report was despatched to the Deputy Collector of Customs, Hyderabad.
23. Mr. R. Rajendran, was examined as P.W.10, who was working as Superintendent of Customs, Central Excise, Directorate of Revenue Intelligence, Hyderabad. P.W.1 had given authorisation to P.W.10 under Ex.P-10 to search the residential premises of A-6 at Kakatiya Nagar, Hyderabad. He along with two witnesses ie., P.Ws.11 and 13 visited the premises. A-6 opened the door. On disclosing their identity and the corresponding purpose of their visit, the premises was searched. One Rajesh Gupta was present along with A-6 at the time of search. During the search, they recovered certain documents and a packet containing 15 grams of grey colour powder. The said powder was divided into three parts and they were seized and sealed. During the search they also found Indian and Foreign currency. They seized the aforesaid items under a panchanama Ex.P-13. A-3 and A-6 were summoned and they gave their statements Exs.P-218 and P-219. At the time of trial, P.Ws.11 and 13 did not support the prosecution and hence they were declared as hostile.
24. Sri N. Ram Reddy, Superintendent, Central Excise, was examined as P.W.14. Mr. S.B. Sharma, who acted as a mediator, was examined as P.W.15. The evidence of P.W.14 discloses that he was directed by P.W.1 to search the premises in Plot No. 25, Old Bowenpally, Secunderabad. He was also provided assistance to visit the premises. The mediator was examined as P.W.15. During their visit, they found the premises was locked. One watchman Sudershan was present. Enquiry was made with him and they were informed by the Watchman that he was not in possession of the keys of the premises but they were in possession of Shamraj Moorjani, who was the owner of the premises. He deputed one person to secure the presence of Shamraj Moorjani. When he came at the spot, he opened the door, which was in his possession. In the middle room they found five wooden boxes, wrapped with gunnies. When Sudershan was directed to open the boxes, they found some brown colour tablets having marked as 'M'. All the boxes were seized and before seizing, sample was drawn. The total weight of 5 boxes was 186 Kgs. and 750 grams. They kept the sample tablets in polythene packet and the packet was put in a brown colour cover. All the covers were sealed. M.O.16 is the five sample packets. P.W.14 took all the seized goods to the Office of the Central Excise and handed over to P.W.1 along with his report.
25. P.W.16. the Assistant Commissioner of Customs, Central Excise, Cochin, named Sri C.K. Ravindran Nair raided the premises on 3-1-1995 in the presence of mediators at Room No. 302, Hotel Queen Mary, Cochin. A-1 and A-2 were staying in that room. On search of the room, they found certain documents and they were seized under a panchanama Ex.P-17. P.W.20 had acted as a mediator. A-1 and A-2 were summoned and made to appear before the Assistant Director on the next day. P.W.16 identified A-1 and A-2 in the Court. Sri Paul Joseph, Manager, Hotel Queen Mary, was examined as P.W.20. He corroborates the testimony of P.W.16. Mr. Paul Joseph had also acted as a mediator.
26. One Dr. John Joseph, Assistant Director, Directorate of Revenue Intelligence, Calicut, was examined as P.W.17. On receipt of the message from the Assistant Director, on the next day he went to Kunhipalli village at Champala near Vadagarai. On going to the said place, Smt. Ramala opened the door and their identity was disclosed to her and the premises were searched. Some documents were seized under the panchanama Ex.P-68, which was in Malayalam language.
27. Sri C. Kiran Kumar , Sub staff of General Insurance Company was examined as P.W.18.
28. One Sri Rajveer Singh, Assistant Director, Forensic Science Laboratory, Hyderabad, was examined as P.W.19. He discloses in his evidence that 40 envelops were received by him from the Assistant Director, Directorate of Revenue Intelligence on 5-1-1995. He found the seal was intact. All the samples were sent to the chemical analysis and there was a positive opinion of the presence of Methaqualone. Ex.P-53 is the report.
29. The defence of the accused is of total denial. The defence examined D.ws.1 to 3. The learned counsel appearing on behalf of the accused did not make any submissions regarding the versions of D.Ws.1 to 3.
30. The main attack of the defence on the evidence of the prosecution is as under: It was submitted by the defence counsel Mr. Sham Keshavani appearing for A-1 and A-6, who are appellants in Crl.A. Nos. 1683 & 1684 of 2000 that the prosecution failed to establish that the accused-appellants herein were in possession of the material, which is psychotropic substance within the provision of section 2(xxiii) of NDPS Act, 19985. The said section reads as under:
'Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;'
31. The second attack was on the procedure adopted for non-compliance of mandatory provisions of section 42(2) of NDPS Act. It was submitted by the defence counsel that the provisions contained in Section 42(2) of NDPS Act was not properly complied with though it is a mandatory. The third ground raised by him was that the safe custody of the samples seized was not established by the prosecution. The question whether what was sent to CFSL for testing purposes becomes doubtful. The 4th ground raised by him was that there were lapses of weight of contraband samples given in Ex.P-53 assumes importance. The 5th ground raised by him was that P.W.19 did not give any data regarding test carried out by him. The 6th ground raised by him was that the prosecution has rendered inadmissible evidence in support of the case against A-1. The prosecution evidence was further criticised regarding the statement of A-1 Ex.P-13 stating that it is not the evidence in law.
32. Mr. H. Srinivasa Rao has also challenged the order of conviction and sentence on the following grounds. It was submitted that the so-called contraband article seized is not Methaqualone. The second ground of attack was that the sample seized as M.Os.7 and 8 were tampered. He also submitted that there is no compliance of Section 42(2) of NDPS Act. The learned counsel further submitted that whatever information was collected by the Officer from the accused is no evidence in law. Section 67 of NDPS Act is at the stage enquiry only which cannot be equated with section 108 of the Customs Act.
33. While rebutting the aforesaid arguments, the learned Special Public Prosecutor Mr. N. V. Ranganathan, submitted at the Bar that the samples were properly seized and they were sent to CFSL. On analysis it was found that it contains the tablets of Methaqualone, a psychotropic substance. There was no possibility of tampering the samples. Samples were properly preserved. The information regarding the seizure was passed on early by the Raiding Officer to their Superiors in compliance with section 42(2) of NDPS Act. Moreover the statements of the accused recorded during the investigation are admissible as the statements were made by the accused voluntarily.
34. I proceed to scrutinise the evidence of the prosecution as to whether the prosecution has been able to bring guilt to the home of the accused.
35. As stated earlier, it was contended that whatever seized by the Officers of the Revenue Intelligence is not a Psychotropic substance within the meaning of Section 2(xxiii) of NDPS Act. The Act has given a list in the Schedule showing as to what is Psychotropic substance. Unless the substance, which is seized, tallies with the Schedule given to the Act, only in that event, it has to be called as a psychotropic substance and not otherwise, as this Act is very much technical. Methaqualone appears to be a commercial name which has the following chemical composition:
' 2-Methy-3-o-tolyl-4 (3H)-quinazolinone'.
36. Now I have to see the evidence regarding the chemical composition as given in the evidence. P.W.19, who happened to be the Senior Scientific Officer, CFSL, Agra, was examined by the prosecution as an Expert witness. While answering to the cross questions, he has given the chemical composition of Methaqualone as under:
'Methyl - 3 (2methyl phenyl) - 4 (3H) Quinalinozil'
37. By looking to the evidence of the aforesaid witness that the chemical composition given by the said witness does not tally with the chemical composition given in the Schedule. The word 'tolyl' is totally absent in the formula given by P.W.19.
38. While giving the explanation to the above discrepancy, the learned Special Public Prosecutor has produced a Xerox copy of the Merck Index and Encyclopedia of Chemicals, Drugs and Biologicals, 12th Edition. My attention was drawn to page 6028 which has given the chemical composition of Methaqualone as under:
' 2-methyl-3-o-tolyl-4(3H)-quinazolinone'
39. The Merck Index, which was shown to this Court, also does not tally with the chemical formula, which is given by the witness in the evidence. Therefore, this Court is not able to hold that whatever the substance was analysed by the Scientific Officer is a Methaqualone. Therefore, on this ground alone the prosecution must fail.
40. Moreover, the established principle of law is that at the appellate stage by producing some documents here and there, the mistake cannot be rectified while the witness in the box he ought to have been put the questions by the Public Prosecutor so as to get the discrepancy removed. But such thing was not done at the time of trial. Therefore, this Court is of the considered view that whatever the drug was seized by the prosecution does not tally with psychotropic substance as incorporated in Section 2(xxiii) of NDPS Act. Therefore, on this ground alone the prosecution must fail.
41. The second ground, which was raised by the defence, was that there was no compliance of mandatory provisions contained in Section 42(2) of NDPS Act. The learned counsel pointed out the provisions contained in Section 42(2) of NDPS Act, which reads as under:
'Where an Officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.'
42. It was contended by the learned defence counsel that this provision is mandatory whereas P.W.1 has stated in the cross-examination that he does not remember whether he had conveyed that information in writing or not. The said witness has further stated in the cross-examination that ' in this case I did not inform the fact in writing to any one of them'. With this admission on record it was contended by the learned counsel that non-compliance of Section 42(2) of the said Act renders the prosecution invalid.
43. The learned defence counsel further submitted that the information has to be given to the superiors to safeguard the interests of the accused as it is a purely technical offence involving severe punishment. The learned defence counsel invited my attention to the ruling reported in ABDUL RASHID IBRAHIM MANSURI vs. STATE OF GUJARAT, 2000 SCC (Crl.) 496. It was laid down by their Lordships of the Supreme Court as under:
' In view of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, if the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he should forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.'
44. While rebutting the aforesaid arguments, the learned Special Public Prosecutor submitted that the Officer of the Revenue Intelligence ie., P.W.1 did not receive the information regarding the illegal activities carried out by the accused, which amounts to an offence under NDPS Act. But the said information was collected by him through his intelligence and therefore there was no necessity for P.W.1 to give information in writing to his superiors. Moreover, it was submitted by the learned Special Public Prosecutor that though the information was not given by P.W.1 in writing but his superior was informed regarding the raids carried out by P.W.1 and therefore his superior visited Hyderabad in connection with the raid conducted by P.W.1 and others at various places.
45. This Court is not satisfied with the submission made by the Special Public Prosecutor. When there is a mandatory provision of informing the superiors regarding the information received by P.W.1, it was necessary for him to pass on such information in writing to his superior. Though it was submitted by the learned Special Public Prosecutor that the information was collected by P.W.1 through the intelligence, it means that a person, may be from his department, had given information regarding the illegal activities done by the appellants, he ought to have given the information to his superior, failing which it is deemed to have caused prejudice to the accused as laid down by the Apex Court.
46. The learned defence counsel further submitted that immediately after the seizure and after drawing samples, the remaining samples seized ought to have been deposited in the Police custody but that was done after two days. Therefore, it was not known what was sent to CFSL is a sample drawn from the possession of the accused-appellants herein. My attention was invited by the learned defence counsels to the evidence of P.W.1. P.W.1 deposed as under:
'The sample of the seized was neither deposited in the Court nor in the godown. We do not have any register of the samples drawn in D.R.I but our Central Excise Office has a register. It is correct that as per standing instructions in item 1.14 (4) the test memo reference and date has to be given has not been complied with. I did not produce the copy of this register before this Hon'ble Court or any proper authority.'
47. With this evidence on record, the learned defence counsel submitted that the contraband samples as given in Ex.P-53 assumes importance. The sample alleged to have seized from Kakatiya Nagar, the weight was described as roughly five grams. The report of the chemical analyst shows that the polythene packet, which was sent to them, was weighing 3.75 grams. With this evidence on record, it was contended that the samples seized were not sent to CFSL, otherwise there was no reason to find less quantity of the sample in the packet, which assumes very importance. The Special Public Prosecutor on this point submitted that the samples were not weighed when they were seized and that was the rough estimation as five grams and therefore, such discrepancy is bound to be there. Moreover, when the samples were seized, the weighing machine was not carried by the raiding party. This Court is not satisfied with the explanation submitted by the Special Public Prosecutor because of the fact that it appears that it was demonstrated in the trial court that the samples could be added or removed without damaging the covers and seals on M.Os.7 and 8 envelopes.
48. I am very much doubtful whether such demonstration can be done. But any way there is a positive evidence on record that while consigning the samples M.Os.7 and 8, care was not taken to send the samples in proper sealed covers and therefore this fact itself is likely to prejudice the defence of the accused. It was also pointed out from the evidence of P.W.19 that he had not given the details or data regarding the test carried out by him. This Court finds lapses on the part of P.W.19 not to mention the test carried out by him while analysing the samples.
49. The next point, which was submitted at the Bar by the defence counsel was that the statement of the accused recorded by the prosecution, especially that of A-1 under Ex.P-30, cannot be treated to have any evidentiary value because of the fact A-1 was made to give the statement by force and the same was admitted by P.W.1 in his cross-examination. My attention was drawn to the evidence of P.W.1, who has deposed as under:
50. In para 2 of Ex.P-30 the words 'Hyderabad Agro Chemicals Ltd.,' are written by hand, I am not able to recollect to say why those words are written in hand in Ex.P-30. Ex.P-30 statement was recorded in one sitting. I am not able to recollect the name of the scribe of those words. It is not in my handwriting. There is no initial of the person, who wrote those words. The initials of A-1 are not obtained near those words.'
51. With this admission on record it was contended that the words 'Hyderabad Agro Chemicals Ltd., came to be written in hand while such statement of A-1 is type written. Therefore, it has to be inferred that some manipulation was done by the prosecuting agency so as to involve A-1 in this case. It was further submitted by the learned defence counsel that P.W.1 has not given the name of the scribe of those words. It is obvious that he is concealing the material facts. Hence no reliance can be kept on Ex.P-30. In support of the aforesaid proposition, the learned defence counsel pointed out a ruling of the Apex Court reported in CHANDRAKANT CHIMMANLAL DESAI vs. STATE OF GUJARAT, 1992 SCC (Crl.) 157, which reads as under:
'The confession of the accused is to be taken into account only after the Court has been satisfied regarding the complicity of the accused or the other evidence. The Court can only look into it to lend only to assurance regarding the guilt of the accused.'
52. I have no hesitation in accepting the aforesaid proposition. But it appears from the record that the learned trial Judge has taken the confession as the basis of conviction, which is not proper.
53. Now, the further point raised by the learned defence counsel was that after the seizure of all the material, they ought to have been kept in safe custody but the material continued to be in possession of the prosecution and therefore there was no compliance of section 55 of the said Act. In support of their contention, the learned defence counsel relied upon a ruling reported in VALSALA vs. STATE OF KERALA, : 1994CriLJ1 in which their Lordships have laid down as under:
'Delay of more than three months in sending seized article to the Court - No evidence to show that article was sealed and kept in proper custody in police station - Sending of the very article seized to chemical examiner, high doubtful - Conviction cannot be sustained.'
54. In the present case also the property was not sent to the Police Station for safe custody immediately after the seizure. Therefore, the sending of seized articles to the Chemical Examiner has become doubtful.
55. The last contention raised by the learned counsel for the defence was that whether the statement of the accused given to the Assistant Director of Revenue Intelligence recorded under section 67 of NDPS Act can be held as admissible, as a part of evidence. Section 67 of NDPS Act reads as under:
'Any Officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act:
a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act orany rule or order made thereunder;
b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
c) examine any person acquainted with the facts and circumstances of the case.'
56. With this provision of law, it was contended by the learned defence counsel that section 67 of NDPS Act is only a part of investigation, which cannot be substituted for substantial evidence. The learned defence counsel tried to draw the distinction between section 67 of NDPS Act with reference to Section 108 of the Customs Act, 1962. Section 108 of the Customs Act reads as under:
108. POWER TO SUMMON PERSONS TO GIVE EVIDENCE AND PRODUCE DOCUMENTS:
1) Any Gazetted Officer of customs shall have power to summon any ;person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.
2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the ;production of all documents or things of a certain description in the possession or under the control of the person summoned.
3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statement and produce such documents and other things as may be required.
PROVIDED that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to any requisition for attendance under this section.
4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860.'
57. The wording used in Section 67 of NDPS Act is quite different from the wording used in section 108 of the Customs Act. Section 67 empowers to call for information from any person whereas Section 108 of Customs Act empowers a Gazetted Officer to summon any person and to consider necessary either to give evidence or to produce documents or any thing in the enquiry. It appears that the Legislature has given quasi judicial powers to the Gazetted Officers of the Customs Department but such power is not given under NDPS Act to any Officer as referred to in Section 42 of the said Act. Therefore, this Court is of the considered view that the statements of the accused cannot be used as evidence for prosecution in the form of confession.
58. Considering the above points raised by the defence counsel, this Court is convinced that the prosecution has not been able to prove the cases beyond doubt against the accused-appellants herein and therefore this Court is of the considered view that the accused-appellants herein are entitled for benefit of doubt.
59. Therefore, the following order is passed: The order of conviction and sentence passed against the accused-appellants herein in Sessions Case No. 164 of 1995 recorded by the Metropolitan Sessions Judge, Hyderabad is hereby set aside. The accused-appellants herein are acquitted of all the charges levelled against them. They are set at liberty forthwith if not required in any other case. The fine amount, if any paid, shall be refunded to them.
60. In the result, all the Criminal Appeals are allowed.