Case Note & Summary
The case arose from a letter dated 13-01-2002 sent by the Zonal Director, NCB, Ahmedabad to the Zonal Director, NCB, Mumbai, informing about the interception of a truck near Shamlaji border on 12-01-2002, where the driver abandoned the vehicle and 45 packets of hashish weighing 142 kg were found hidden in a secret cavity. Among the packets, 12 packets were to be delivered to Accused No.1, Gulam Mohammed Malik, and 18 packets to one Farukh, as per a visiting card. NCB Mumbai was requested to surveil and apprehend the suspects. Acting on this information, NCB Mumbai officers kept discreet surveillance and, on 13-02-2002, prepared a note under Section 42 of the NDPS Act recording intelligence that Accused No.1 was in possession of a substantial quantity of hashish at his residence, Room No.6, Haroon Manzil, Imamwada Road, Mumbai, and that the contraband was likely to be removed and disposed of on the morning of 14-02-2002. The intelligence also indicated that Accused No.1 procured hashish from Kashmir concealed in fruit consignments and distributed it locally. On 14-02-2002 at about 7 a.m., NCB officers, after calling two panch witnesses, raided Accused No.1’s residence. They knocked, disclosed their identity and purpose, and offered personal search, which Accused No.1 declined. The officers then entered the premises and found one Mohammad Ramzan Aralare living there. A systematic search revealed a packet wrapped in brown scotch tape inside a wall cupboard containing several balls of sticky black substance. Field test indicated positive for hashish. The total weight was 1800 grams. A panchnama was drawn. On inquiry, Accused No.1 disclosed that he had stored another 28 kg of hashish in the basement business premises of Accused No.2, Gurudev Singh Vora, at Matruchhaya Building, Narsi Natha Street, Mumbai. The NCB team, along with Accused No.1 and Ramzan, proceeded to the said premises and called two panchas. They met Accused No.2, disclosed their identity and intention to search, and again offered personal search, which was declined. During search, two stripped nylon market bags were recovered. The first bag contained two large khaki envelopes with bundles wrapped in brown tape; inside were smaller balls in Jamun shape having sticky substance with deep odour. Test indicated positive for hashish. The second bag contained seven large khaki envelopes, each containing packets with similar balls. The samples were taken, sealed, and the bulk seized. The total weight was 28.030 kg. Further, a subsequent search of an adjacent basement portion yielded 159 kg of hashish, though details of that recovery are not fully in the truncated text. A panchnama was drawn. Nil panchnama was drawn at Accused No.2’s residence as nothing incriminating was found. Statements of Accused Nos.1 and 2 were recorded under Section 67 of the Act, wherein they admitted their involvement and the possession of hashish. The trial court therefore framed charges against them under Sections 29, 20(b)(ii), 8(c), and 25 of the NDPS Act. After trial, the Special Court convicted Accused No.1 under Sections 8(c) read with 20(b)(ii) and, having regard to his previous conviction under the same sections in Sessions Case No.01/2002, imposed enhanced punishment under Section 31-A, sentencing him to death by hanging. Accused No.1 was acquitted of the conspiracy charge under Section 29. Accused No.2 was acquitted of the charge under Section 25 read with Sections 20(b)(ii) and 8(c). The death sentence was submitted for confirmation to the High Court, and Accused No.1 filed an appeal challenging his conviction. The High Court, by its judgment delivered on 07-05-2012, confirmed the death sentence and dismissed the appeal, upholding the conviction and sentence of Accused No.1 and the acquittal of Accused No.2. The core legal issues revolved around the legality of the search and seizure, the voluntariness of statements under Section 67, the proof of possession, and the applicability of Section 31-A for a repeat offender.
Headnote
A) Narcotic Drugs - Possession of Hashish - Commercial Quantity - Narcotics and Psychotropic Substances Act, 1985, Sections 8(c), 20(b)(ii) - Accused No.1 found in possession of 1.8 kg hashish in his residential premises Room No.6, Haroon Manzil, and 28.030 kg hashish in the basement of Matruchhaya Building used by Accused No.2, along with further 159 kg hashish from adjacent portion, total 188.830 kg, which is commercial quantity; court convicted under aforesaid sections. (Paras 2, 8) B) Sentencing - Enhanced Punishment for Repeat Offender - Previous Conviction for Same Offence - Narcotics and Psychotropic Substances Act, 1985, Section 31-A - Since Accused No.1 was previously convicted under Section 8(c) r/w 20(b) in Sessions Case No.01/2002 by Addl. Sessions Judge, Sabarkantha, the Special Court imposed death penalty; the High Court confirmed the sentence. (Para 2) C) Conspiracy - Failure to Prove Conspiracy - Narcotics and Psychotropic Substances Act, 1985, Section 29 - The charge of conspiracy was not proved against Accused No.1 as the prosecution failed to establish any agreement with others; he was acquitted of the offence under Section 29 r/w 8(c) and 20(b)(ii). (Para 2) D) Search and Seizure - Compliance with Procedural Safeguards - Narcotics and Psychotropic Substances Act, 1985, Sections 42, 50 - The NCB officers prepared a note under Section 42 before conducting search, informed the accused of their right to be searched before a gazetted officer or magistrate, and conducted the search in the presence of panchas, rendering the seizure and recovery lawful. (Paras 5-8) E) Evidence under Section 67 - Admissibility of Confessional Statements - Narcotics and Psychotropic Substances Act, 1985, Section 67 - Statements of Accused Nos.1 and 2 were recorded under Section 67, wherein they admitted possession and knowledge of hashish, which were used to support conviction. (Paras 9-10)
Issue of Consideration
Whether the death sentence imposed on Accused No.1 under Section 31-A of NDPS Act is warranted; Whether the conviction of Accused No.1 is sustainable; Whether the acquittal of Accused No.2 is proper
Final Decision
The High Court confirmed the death sentence of Accused No.1 and dismissed his appeal; the acquittal of Accused No.2 was upheld.
Law Points
- Conviction under Section 8(c) and 20(b)(ii) for possession of commercial quantity of hashish
- Enhanced punishment under Section 31-A for repeat offender
- Death penalty confirmed
- Acquittal under Section 25 for lack of evidence
- Conspiracy under Section 29 not proved
