Supreme Court Upholds Conviction for Illegal Sale of Poppy Straw: Girish Raghunath Mehta vs. Inspector of Customs (2016)

Introduction

Date of the Judgment: 07 September 2016

Citation: (2016) INSC 696

Judges: Justice C. Nagappan and Justice Adarsh Kumar Goel

Can a person be convicted for selling poppy straw illegally based on a statement given under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and when the recovery of the contraband was made from a public place? The Supreme Court of India addressed this question in the case of Girish Raghunath Mehta vs. Inspector of Customs and Another. The court upheld the conviction of the appellant for the illegal sale of 30 kgs of poppy straw, confirming the concurrent findings of the lower courts. The judgment was delivered by a bench comprising Justice C. Nagappan and Justice Adarsh Kumar Goel, with the opinion authored by Justice Adarsh Kumar Goel.

Case Background

On February 26, 2004, the Inspector of Customs, Mumbai, received information that Girish Raghunath Mehta (the appellant) was selling crushed opium poppy straw without bills from his shop. It was also learned that Karim Patel (co-accused) was to purchase 30 kgs of poppy straw from him. A raid was conducted at the appellant’s premises, where Karim Patel was found with 30 kgs of poppy straw. Karim Patel stated that he had purchased the poppy straw from the appellant for Rs. 5,400 without any bill. During the search of the appellant’s shop, some documents were recovered. The poppy straw tested positive for opium. Three samples were taken, and the remaining powder was sealed. Karim Patel identified the appellant as the seller of the poppy straw. The appellant also admitted to selling the poppy straw to Karim Patel without a bill or medical prescription in his statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Timeline

Course of Proceedings

The trial court convicted the appellant for both illegal possession and illegal sale of poppy straw. On appeal, the High Court upheld the conviction for illegal sale but quashed the conviction for illegal possession of commercial quantity of poppy straw. The co-accused, Karim Patel, was also convicted for abetment of the offense. The appellant then appealed to the Supreme Court challenging his conviction for illegal sale of poppy straw.

Legal Framework

The case primarily involves the interpretation and application of the following sections of the Narcotic Drugs and Psychotropic Substances Act, 1985:

• Section 8(c) of the NDPS Act: This section prohibits the manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, or consumption of any narcotic drug or psychotropic substance, except for medical or scientific purposes as per the provisions of the Act.
• Section 15 of the NDPS Act: This section specifies the punishment for contravention of Section 8(c) of the NDPS Act, relating to poppy straw.
• Section 42 of the NDPS Act: This section outlines the procedure for entry, search, seizure, and arrest without warrant or authorization. It is applicable when the search is conducted in a building, conveyance, or enclosed place.
• Section 43 of the NDPS Act: This section deals with the power of seizure and arrest in public places. It states that any officer authorized under Section 42 can seize any narcotic drug or psychotropic substance in a public place or in transit.
• Section 67 of the NDPS Act: This section empowers officers to call for information and record statements, which can be used as evidence in the trial.

Arguments

Appellant’s Arguments:

• Violation of Section 42: The appellant argued that there were discrepancies in recording prior information, thus violating the mandatory requirements of Section 42 of the NDPS Act. The intelligence note was recorded on February 26, 2004, but the information was received one or two days prior, during the investigation of an earlier case. This delay and contradiction in recording information, as per the appellant, violated the requirements of Section 42 of the NDPS Act.

• Discrepancies in Evidence: The appellant contended that the gunny bag produced in court did not carry the label and signatures, thus could not be linked to the appellant. The witness (PW2) was unable to confirm if the bag had a seal or label. The appellant also stated that the record of the samples was not maintained properly, and the same panchas were used on multiple occasions.

• Admissibility of Statement under Section 67: The appellant argued that the statement recorded under Section 67 of the NDPS Act was a confession before the police and was not admissible as evidence. The appellant was in custody when the statement was recorded, and it was not voluntary. The statement was not read over to him, and no independent witness was present during the recording. Even if admissible, the statement was a weak piece of evidence and had only corroborative value.

• Statement of Co-accused: The appellant stated that the statement of the co-accused could not be taken as substantive evidence and could not be relied upon.

State’s Arguments:

• Concurrent Findings: The State argued that the concurrent findings of the lower courts were based on evidence and should not be disturbed in an appeal under Article 136 of the Constitution.

• Applicability of Section 43: The State submitted that Section 42 of the NDPS Act applies only when the recovery is from a building, conveyance, or enclosed place. The present case was covered by Section 43 as the recovery was from a public place, and therefore, the requirements of Section 42 were not applicable.

• No Objection on Label: The State pointed out that no objection was raised at the time of production of the gunny bag regarding the absence of a label. The recovery of the contraband from the co-accused was not in dispute, and the recovery was proved by independent direct evidence. The co-accused had not even challenged his conviction.

• Samples Intact: The State submitted that the evidence of the chemical examiner (PW8) was clear that all the samples were in sealed condition.

• Voluntary Statement: The State argued that the appellant never retracted his statement under Section 67, which clearly stated that he sold the contraband to the co-accused, who did not have a license to purchase it. The appellant was not in custody when his statement was recorded, as confirmed by the statement of PW2, who recorded it.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the conviction and sentence awarded to the appellant was unsustainable due to discrepancies in recording of prior information resulting in violation of mandatory requirement of Section 42 of the NDPS Act.
2. Whether the statement of the accused under Section 67 of the NDPS Act amounted to a confession before police and was not admissible as evidence.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• Abdul Rashid Ibrahim Mansuri v. State of Gujarat [2000] 2 SCC 513*: Distinguished, stating that Section 42 applies to enclosed places, not public places.
• Sajan Abraham v. State of Kerala [2001] 6 SCC 692*: Reconciled with the view taken in Abdul Rashid Ibrahim Mansuri (supra) in the larger bench judgment in Sukhdev Singh (supra).
• State of Rajasthan v. Jag Raj Singh [2016] 6 SCALE 32*: Distinguished on the same ground as Abdul Rashid Ibrahim Mansuri.
• Sukhdev Singh v. State of Haryana [2013] 2 SCC 212*: Relied upon to state that strict compliance with Section 42 is not required in emergency situations.
• Tofan Singh v. State of Tamil Nadu [2013] 16 SCC 31*: Noted that the issue of whether an officer under the Act is a police officer and whether the statement under Section 67 is a confessional statement was referred to a larger bench but stated that in the present case, there was adequate evidence.
• Union of India v. Bal Mukund [2009] 12 SCC 161*: Distinguished, stating that the present case had sufficient evidence.
• Raju Premji v. Customs NER Shillong Unit [2009] 16 SCC 496*: Distinguished on the same ground as Bal Mukund.
• Noor Aga v. State of Punjab [2008] 16 SCC 417*: Relied upon to state that the statement under Section 67 was voluntary.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The recovery of the contraband from the co-accused immediately after the sale.
• The appellant’s own statement under Section 67 of the NDPS Act, admitting to the sale.
• The fact that the co-accused did not have a license to purchase the poppy straw.
• The applicability of Section 43 of the NDPS Act, as the recovery was from a public place.
• The voluntary nature of the statement under Section 67, made before the appellant was formally accused.

Fact:Law Ratio

The court’s decision was more influenced by the factual aspects of the case, such as the recovery of the contraband and the appellant’s statement, than by the legal interpretations.

Logical Reasoning

The Court reasoned that the recovery of the contraband from the co-accused, the appellant’s statement under Section 67 of the NDPS Act, and the fact that the co-accused did not have a license to purchase the poppy straw, all pointed towards the appellant’s guilt. The Court also emphasized that Section 42 of the NDPS Act was not applicable as the recovery was from a public place and that the statement under Section 67 was voluntary and made before the appellant was made an accused. The Court further stated that it was not necessary to go into the aspect of whether the investigating officer under the Act is a police officer and whether the statement recorded under Section 67 can be treated as a confessional statement since there was adequate evidence to prove the sale of the contraband by the appellant. The Court stated that the prosecution version was based not only on the statement under Section 67, but also on the evidence of recovery of the contraband immediately after the sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. The Court concluded that there was no ground to interfere with the conviction and sentence awarded to the appellant.

The court considered the arguments against the admissibility of the statement under Section 67, but rejected them. The court noted that the statement was made voluntarily, and the appellant had not retracted it. The court also noted that the statement was made before the appellant was formally accused. The court concluded that the statement was admissible as evidence.

The Court quoted the following from the judgment:

“Both the courts below have concurrently held that the appellant was found to have sold the contraband to the co-accused without any licence.”

“The evidence in the form of statement of the appellant himself (Ex.-20) under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused-Karim Patel who did not have any licence to purchase thereof.”

“The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization.”

Key Takeaways

• Applicability of Section 43: Section 43 of the NDPS Act is applicable when the recovery of contraband is made from a public place, and the requirements of Section 42 are not mandatory in such cases.
• Admissibility of Statements: Statements recorded under Section 67 of the NDPS Act are admissible as evidence if they are made voluntarily and before the person is formally accused.
• Importance of Direct Evidence: Direct evidence, such as the recovery of contraband immediately after the sale and the statement of the accused, can be sufficient for conviction.
• Concurrent Findings of Lower Courts: The Supreme Court is less likely to interfere with concurrent findings of the lower courts unless there is a gross miscarriage of justice.

Directions

No specific directions were given by the Supreme Court in this case.

Specific Amendments Analysis

There was no discussion on any specific amendment in this judgment.

Development of Law

The ratio decidendi of this case is that Section 43 of the NDPS Act applies to seizures made in public places, and the requirements of Section 42 are not mandatory in such cases. Additionally, statements made under Section 67 of the NDPS Act are admissible as evidence if they are voluntary and made before the person is formally accused. This judgment reinforces the interpretation of Sections 42 and 43 of the NDPS Act and clarifies the admissibility of statements under Section 67.

Conclusion

The Supreme Court dismissed the appeals and upheld the conviction of Girish Raghunath Mehta for the illegal sale of 30 kgs of poppy straw. The Court found that the recovery of the contraband was made from a public place, thus Section 43 of the NDPS Act was applicable. The Court also held that the statement given by the appellant under Section 67 of the NDPS Act was voluntary and admissible as evidence. The judgment reinforces the importance of direct evidence and the applicability of Section 43 in cases of seizures from public places.