Dismissed

D.Bhambri,I.O.N.C.B.,Bombay v. Eknath Marutirao Kalmetkar and Anr.

Bombay HC12 Oct 2021APEAL/457/1996

Case brief

AI extract

What is this about?

The NCB appealed an acquittal for violations of the NDPS Act and Customs Act. The High Court held the trial was vitiated due to non-compliance with statutory notification requirements and lack of independent witnesses. Dismissing the appeal, the court upheld the acquittal as the trial findings were not erroneous or unsustainable.

What did the court decide?

The criminal appeal was dismissed; the acquittal of the respondent-original accused is upheld.

D.Bhambri,I.O.N.C.B.,Bombay Vs Eknath Marutirao Kalmetkar… — Narcotics (NDPS) | Bombay HC (2021)

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CRI.A.-457-C-1996.odt

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Shailaja

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This judgment is corrected vide speaking to minutes of the order dated 25th October, 2021

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.457 OF 1996

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Shri D. Bhambri]
Intelligence Officer, Narcotics]
Control Bureau, Exchange Building]
Ballard Estate, Mumbai – 400 038.]
through Public Prosecutor for ]
Union of India.]Appellant
Vs.
1. Eknath Marutirao Kalmetkar,]
 r/o Bungalow No.147,]
 Ballaleshwar Co-Op Society]
 Kalyan Karjat Road, Kulgaon]
 Dist. Thane.]Respondent No.1
(Original Accused)
 R/o Tera Warshya Apartments,]
 3rd Floor, Mangshit, Beleshi, ]
 Badlapur (West),]
2. The State of Maharashtra]Respondent No.2

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Ms. Ameeta Kuttikrishnan, for Appellant.
Mr. Rajendra Bidkar, for Respondent No.1.
Ms. Geeta Mulekar, A.P.P, for Respondent No.2-State.

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Digitally signed by SHAILAJA SHRIKANT HALKUDE Date: 2021.10.26 17:19:13 +0530

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SHAILAJA SHRIKANT HALKUDE

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CORAM

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CORAM : SMT. SADHANA S. JADHAV &
 PRITHVIRAJ K. CHAVAN, JJ.
 RESERVED ON: 27th SEPTEMBER, 2021.
 PRONOUNCED ON: 12th OCTOBER, 2021.

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JUDGMENT: [Per Prithviraj K. Chavan, Judge]:

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1.An Intelligence Officer, Narcotics Control Bureau, Mumbai
has preferred this appeal impugning the judgment and order of
acquittal by Special Judge (NDPS Court), Greater Mumbai dated
26th March, 1996, by which the respondent-original accused came
to be acquitted of the offences punishable under sections 8 (c) r/w
22, 23, 28 and 29 of The Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short ‘NDPS’ Act’) as well as of the
offences punishable under sections 135 (1) (a) r/w 135 (1) (ii) of
the Customs Act, 1962. Facts of the prosecution case, as emerged
from the record, can be summarized as follows.

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2.On 29th August, 1991, a reliable information was received by
P.W.3 - Shastrinath Sawant, Superintendent, Central Excise that a
consignment of Mandrax tablets is being carted in MOD shed No.1
at Mumbai. It was to be carted on the very next date i.e on 30th
August, 1991 at about 11.00 a.m in the morning which was to be
transported in a tempo bearing No. MMS-1580. The information
further revealed that Mandrax tablets would be concealed in the
goods. P.W.3 - Shastrinath Sawant passed the said information to
his Deputy Director R.L. Kakkar for further necessary action. The
said information was forwarded in writing.

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3. Some officers of the NCB were called in the chamber of the
Deputy Director- Mr. R.L. Kakkar including P.W.1-Vijay Shahasane,
Intelligence Officer attached to NCB. Suitable instructions were
given to all of them and it was decided to intercept the said tempo
at the time of it’s entry into Bombay Port Trust shed when the
consignment was to be carted.

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4. Accordingly, on the next date, raiding team comprising of
the officers left the office for the purpose of conducting the raid.
P.W.1- Vijay Shahasane had collected the sealing and weighing
material, drug identification kit and the stationery. All of them
reached near the gate of BP.T. The officers spread over in two
different groups.

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5.Around 10.50 a.m, the team noticed a tempo bearing No.
MMS-1580 entering the gate. All of them followed the tempo. The
Driver of the said tempo stopped it at the B.P.T shed No.1. It was
noticed that three people alighted from the cabin. All of them had
unloaded the consignment consisting of 18 packages in the shed.
The packages were stacked in the godown after unloading the
consignment. The Driver and the cleaner sat in the tempo and
were about to leave, when the tempo was intercepted.

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6. P.W.1-Vijay Shahasane apprehended the person standing
beside the consignment with some papers in his hand. He was the
respondent accused namely Eknath Kalmetkar. On the basis of the
information furnished by Eknath Kalmetkar, a trap was laid to
apprehend one Shri Rane who was to arrive at the spot at about

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12.00 in the noon. Around 12.30 hours when a person came over
there and met Eknath, Eknath handed over the documents to the
said person. The said person was immediately apprehended. On
being asked, he told his name as Rane and that he was there to
clear the consignment consisting of 18 packages.

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7.The raiding team appraised both of them that they wanted
to take search of the consignment as it was suspected to be
containing some drugs. Both of them showed their willingness for
examination of the consignment. Both of them were taken to the
shed where the consignment was stacked.

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8.By that time, P.W.1- Vijay Shahasane and other officers came
to the shed along with Driver and Cleaner of the tempo, some
custom officers had also arrived by that time.

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9.P.W.3-Shastrinath Sawant summoned two persons as panch
witnesses. The team had disclosed their identity to the accused.
While examining the packages, the team had noticed that the
packages contained lungis and beneath those lungis, they found
certain off white colour tablets kept in polythene packets. Since it
was not convenient to examine all the 18 packages in the shed,
entire consignment was taken to the examination hall of the
customs examination shed i.e shed No.2.

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10.At the time of examination of the packages in the presence
of the accused, Driver, Cleaner of the tempo as well as Shri Rane
and two panchas, it was noticed that packages No.1 to 4, 16, 17

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and 18 contained contraband. No contraband was found in the
packages 5 to 15.

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11.The tablets found in those plastic bags had a specific
marking i.e there was a ‘swastik’ mark on one side and ‘M’’ mark
on the other side. Similarly, they noticed different markings on the
other set of the tablets. There was marking of letter ‘M’ and
‘Swastik’ on one side of the tablets and on the other side of the
tablets, there was a marking ‘R/L’. A few random tablets were
collected and examined by carrying out drug identification test.
The result was positive for Methaqualone. All the packets were
weighed and found to be about 480 kg. 42 tablets were taken as
samples from packets No.1 to 4 and 16 to 18. They were divided
into two groups i.e in 20 and 22 tablets. From each group, two
representative samples were drawn and were weighed about 10
grams each and 11 grams each, respectively. Sample packets were
put in polythene paper and thereafter in paper envelope. All the
four sample packets were duly packed, sealed and labeled. The
seal was of NCB and “O No.3”.

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12.Rest of the bulk quantity of the contraband was packed in
their respective packages, duly sealed and labelled. Signatures of
Panchas as well as Mr. Vijay Shahasane were obtained. The lungis
were taken separately and packed in a carton.

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13.The documents received by Shri Rane from the accused were
taken charge of under the panchanama. The entry pass found in
possession of the accused was also taken charge of. The temporary

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pass issued by the BPT in favour of the Driver and Cleaner was
also collected. A detailed panchanama was drawn at the spot.
Entire muddemal property together with sample packets was
seized under panchanama which was kept in the custody of P.W.1-
Vijay Shahasane who is the Investigating Officer. Seizure
panchanama is at Exhibit 6. The documents which were seized are
marked as Exhibit A to F collyand Exhibit 30.

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14.A detailed report of the search and seizure was prepared by
PW.1-Vijay Shahasane. Signature of Mr. Kakkar was also obtained.
It is at Exhibit 31.

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15.Further investigation was carried by P.W.2-Deepak Bhambri
another Intelligence Officer of NCB and the appellant herein.

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16.Statements of the accused came to be recorded on 30th
August, 1991 and 31st August, 1991 which are at Exhibit 13and
Exhibit 14. The statements are in the handwriting of P.W.2- Deepak
Bhambri. The statements were signed by the accused.

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17.The residential premises of the accused was searched on 1st
September, 1991. Certain documents were seized under a
Panchanama. Further statement of the accused came to be
recorded on 17th September, 1991.

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18.On 4th September, 1991, P.W.2-Deepak Bhambri had
deposited the seized drugs in the customs godown. Accused was
arrested on 31st August, 1991. Before arresting the accused on 31st

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August, 1991, grounds of arrest were were informed to him and he
was given in the custody of Senior Police Inspector, Azad Maidan
Police Station. After investigation, a charge-sheet was filed against
the accused in the Special Court.

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19.After framing a charge against the accused under sections 8
(c) r/w 22, 23, 28 and 29 of the NDPS Act as well as of the
offences punishable under section 135 (1) (a) r/w 135 (1) (ii)of
the Customs Act, 1962, accused pleaded not guilty and abjured the
guilt.

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20.Nine witnesses came to be examined by the prosecution to
substantiate it’s case. The learned Special Judge after going
through the evidence of prosecution witnesses, by the impugned
judgment acquitted the accused of all the offences with which he
has been charged.

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21.Heard Ms. Ameeta Kuttikrishnan, learned Counsel appearing
for the appellant, Mr. Rajendra Bidkar, learned Counsel for
respondent No.1 and Ms. Mulekar, learned A.P.P, for respondent
No.2-State.

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22. It is pertinent to note that the accused in companion appeal
i.e Criminal Appeal No. 456 of 1996 namely Zafar Khan died on
17th June, 2014 and, therefore, the appeal came to be dismissed as
abated by an order of this Court (Coram: P. V. Hardas and Dr.
Shalini Phansalkar-Joshi, JJ) dated 12th February, 2015.

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23.Before analyzing the oral evidence adduced by the appellant,
it is apparent that the prosecution case itself stands vitiated on
account of non compliance of section 42 (2) and section 50 of the
NDPS Act.

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24.It is equally important to note that except officials of the
NCB, there is no evidence of any independent witness except the
owner of the tempo, P.W.8-Ankush Bhoite, who turned hostile. The
appellant emphasized on the testimony of it’s witnesses coupled
with statements of the accused recorded by them.

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25.In so far as compliance of section 42 (2) of the NDPS Act is
concerned, evidence of P.W.2- Deepak Bhambri would be relevant
who in his cross-examination unequivocally admitted that writing
of the information and showing the gist thereof to the superior
official is an important circumstance. Admittedly, this witness had
neither visited the spot nor had received any information. The role
which appears to have been played by this witness is only to give
suitable instructions to the Public Prosecutor for drawing a
complaint. He admits that he did not possess gist of the
information and the record indicates the same was either sent by
superior officers or sent to the officers when he gave those
instructions to the Public Prosecutor. This admission would reveal
that on the date of drafting the complaint, this witness did not
possess with himself either gist of the information received by the
Officer or any other document indicating that the information was
sent by the superior officers.

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26.P.W.3-Shastrinath Sawant is another important witness of the
appellant who had accompanied the raiding party at the scene of
occurrence. His evidence reveals that when the Investigating
Officer is appointed, all necessary case papers and documents were
handed over to him. He admitted during the course of cross-
examination that recording information and sending the copy
thereof to the superior officials is an important task. A perusal of
copy of the information and the record, in fact, indicates that the
said information was sent to the superior official and was also
handed over to Deepak Bhambri along with other case papers. It is
apparent that these two witnesses contradict each other on this
material aspect namely P.W.1-Vijay Shahasane and P.W.2-Deepak
Bhambri. If at all, copy of the information had been shown to the
Public Prosecutor, there ought to have a reference made in the
complaint.

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27.Astonishingly, the complaint is sans any reference of sending
copy thereof to the superior officials. Stand of the accused that
evidence was collected showing that copy was sent to the superior
officials is fabricated one cannot be said to be a suggestion without
substance. Section 50 of the NDPS Act is an important provision in
the Act conferring a valuable right upon the accused, in the sense,
to appraise him about his mandatory right to get searched by
nearest Gazetted Officer of any Department mentioned in section
42 or to the nearest Magistrate.

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28.This is not an empty formality and the law on that aspect is
no more res integra. It is in the form of a safeguard with a view to

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see that the authorized officers do not misuse the powers
conferred upon them by the Statute.

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29.There is no evidence in the complaint that the copy of the
information received by the officer was forwarded to the superior
official. The complaint is also silent as regards appraisal of the
legal right to the accused and that thereafter his search was made.
In his cross-examination, P.W.3-Shastrinath Sawant though had
stated that the accused was appraised of his legal right,
nevertheless, it does not find place in the complaint and, therefore,
it can safely be inferred that P.W.3-Shastrinath Sawant, by way of
an afterthought, stated about the said fact only with a view to suit
the prosecution story. This indeed goes to the root of the
prosecution case.

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30.It reveals from the record that most of the evidence of the
prosecution comprises testimonies of their officers from NCB.
Statement of the accused came to be recorded on four occasions
which the prosecution wants this Court to rely upon and accept as
a voluntary statement made while in their custody. Confessional
statement alleged to have been given by the accused is essentially
a weak piece of evidence which does not have any corroboration
from the other evidence on record. Ipse dixitism of the prosecution
witnesses cannot be accepted as a gospel truth, more particularly,
in light of the fact that the prosecution has failed to establish that
the accused, in fact, was in conscious possession of the
contraband. A useful reliance can be placed in that regard upon
the judgment of this Court.

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31.In case of Premnarayan Prabhulal Mina and another Vs State
of Maharashtra, 2008 ALL Mr (Cri) 599, ratio laid down by the
learned Single Judge of this Court is that in order to prove
“conscious possession” of the contraband (in the said case bundles
of ganja), it is necessary for the prosecution to establish direct
control of the accused over the articles. Mere fact that the bundles
were found in the truck will not by itself show that the accused
were actual possessors of those bundles. Mere presence of the
accused in the truck would not clinch the issue of “conscious
possession”. The learned Single Judge has referred the well known
judgment of the Hon’ble Supreme Court in the case of Avtar Singh
and others Vs. State of Punjab, AIR 2002 Supreme Court 3343.
Relevant portion from the said judgment is extracted as under;

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“Possession and ownership need not always go
together but the minimum requisite element
which has to be satisfied is custody or control
over the goods. Can it be said, on the basis of
the evidence available on record, that the
three appellants –one of whom was driving the
vehicle and other two sitting on the bags, were
having such custody or control? It is difficult
to reach such conclusion beyond reasonable
doubt. It transpires from evidence that the
appellants were not the only occupants of the
vehicle. One of the persons who was sitting in
the cabin and another person sitting at the
back of the truck made themselves scarce after

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seeing the police and the prosecution could
not establish their identity. It is quite probable
that one of them could be the custodian of
goods whether or not he was the proprietor.
The persons who were merely sitting on the
bags, in the absence of proof of anything
more, cannot be presumed to be in possession
of the goods. For instance, if they are
labourers engaged merely for loading and
unloading purposes and there is nothing to
show that the goods were at least in their
temporary custody, conviction under S.15 may
not be warranted. At best, they may be
abetors, but, there is no such charge here.
True, their silence and failure to explain the
circumstances in which they were travelling in
the vehicle at the old hours, is one strong
circumstance that can be put against them”.

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32.It reveals from the record that during the course of
investigation, the prosecution had not only recorded statement of
the co-accused Jafar Khan (now deceased) but also one
Borgaonkar who came to be discharged subsequently. In so far as
statements of those accused were concerned, they being
statements made by the co-accused cannot be totally relied upon
against the appellant. Their statements, per se, cannot be said to
be an evidence under section 3 of the Evidence Act. Even in his
statement under section 313 of the Cr. P.C., no question was put to

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the accused/respondent that he was found in conscious possession
of Mandrax Tablets.

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33.An adverse inference is required to be drawn against the
prosecution for non examination of Mr. Rane from whose
possession the document produced at Exhibit 30came to be seized
and not from the possession of the accused. Withholding the
evidence of Mr. Rane would indeed lead to draw an inference
against the prosecution. His non examination would cause
prejudice to the cause of the defence.

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34.The prosecution has not adduced any evidence as to from
which place the consignment was loaded and was destined to
which foreign country. P.W.8-Ankush Bhoite who is the owner of
the tempo bearing No MMS-1580 did not support the prosecution
case. Sum and substance of his evidence is that he could not
identify the accused in the dock as to the person who had engaged
his tempo on hire at the relevant time for transporting goods.
Rather, it is his evidence that on the date of the incident besides
the cleaner, the person who was owner of that consignment were
with him. It is an unsolved mystery as to who was the real owner
of the consignment and what was his name. According to this
witness, consignment was unloaded in the MOD gate which is an
admitted position. Even during his cross on behalf of the appellant,
nothing could be extracted which would be of any assistance to the
appellant. He did not know that apart from lungis what else was
stored in the tempo, more particularly, alleged contraband.

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35.As such, evidence of P.W.8-Ankush Bhoite does not further
prosecution case any more as his evidence is hardly of any use in
proving the charge against the accused. During the cross-
examination, P.W.8- Ankush Bhoite was not confronted with his
previous statement which was recorded before P.W.7-Sunil Rohatgi.

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36. There is one more glaring defect in the prosecution case.
P.W.9-Kishor Dave failed to identify the accused in the dock by
testifying that since there was a large crowd, it was not possible
for him to identify any person. He makes it clear in so many words
that he did not know whether person sitting in the dock is the
accused. This indeed gives a big jolt to the prosecution case.

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37.We have been fortified in our view with a latest
pronouncement of the Hon’ble Supreme Court in the case of
Gangadhar alias Gangaram Vs. State of Madhya Pradesh (2020) 9
Supreme Court Cases 202. It was a case under Sections 8 (c)/20
(b) (ii) (C) and sections 35 and 54 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. The appellant-accused was
held to be owner of a house from which ganja (48 kg 200 gm) was
recovered relying upon the voters list of particular year by
rejecting his defence that he had sold his house to co-accused in
the subsequent year. The voters list entry being prior to sale is of
no significance. It is not without reason that co-accused has
absconded. It is held that in view of the evidence available, it is
not possible to hold that prosecution had established conscious
possession of house with the appellant so as to attribute
presumption under the NDPS Act against him with regard to

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recovered contraband. It is, inter alia, observed that conviction
could not be based on foundation of conjectures and surmises.

¶88

38.Thus, there is no compliance of section 42 (2) of the NDPS
Act which would go to the root of the matter and vitiate the trial.
There are no independent witnesses. The overall evidence does
not at all inspire confidence and, therefore, it is highly unsafe to
rely upon such evidence. The learned Special Judge has rightly
appreciated the entire evidence and circumstances on record and
reached a legal and proper conclusion in acquitting the accused.

¶89

39.Consequently, we do not find any reason to interfere with
the impugned judgment in view of the settled principle of law that
while considering the appeal against acquittal, the Appellate Court
is first required to seek an answer to the question whether the
findings of the trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable and if the Court answers
above questions in the negative, acquittal cannot be disturbed.

¶90

40.Corollary of the aforesaid discussion is that the appeal is
devoid of merits. Hence, it is dismissed.

¶91

[PRITHVIRAJ K. CHAVAN, J.] [SMT. SADHANA S. JADHAV, J.]

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D.Bhambri,I.O.N.C.B.,Bombay v. Eknath Marutirao Kalmetkar and Anr.

Case brief

What is this about?

What did the court decide?

D.Bhambri,I.O.N.C.B.,Bombay v. Eknath Marutirao Kalmetkar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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