IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 987 of 1997 with CRIMINAL APPEAL No 1029 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------- RAMANBHAI BEHCARBHAI RAMI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 987 of 1997 MR DEEPAK M SHAH for Appellant No. 1 MR BY MANKAD APP for Respondent No. 1 2. Criminal Appeal No. 1029 of 1997 MR DEEPAK M SHAH for Appellant No. 1 MR BY MANKAD APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE H.H.MEHTA Date of decision: 01/08/2002 CAV COMMON JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) #. As these two appeals are arising from one common judgement dated 11.9.1997 rendered by Additional Sessions Judge, Nadiad in Special NDPS Case No. 9 of 1996, same are disposed of by this Common Judgement. Criminal Appeal No. 987 of 1997 is filed by original accused No. 2 Ramanbhai Becharbhai Rami, while Criminal Appeal No. 1029 of 1997 is filed by original accused No. 1 Prabhat Mahiji Gohil. #. Original accused No. 1 of Special NDPS case has by filing Criminal Appeal No. 1029/97 challenged the correctness and legality of judgement of conviction and sentence dated 11th September, 1997 rendered by learned Additional Sessions Judge, Nadiad, whereby, he has been convicted under Section 235 (2) of the Criminal Procedure Code (hereinafter referred to as "Cr.P.C." for short) for the offences punishable under Section 17, 18, 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" for short) and is sentenced to undergo imprisonment for said three offences for 10 years and to pay a fine of Rs.1 lac and in default of fine, to undergo further imprisonment for one year. He is also convicted for the offence punishable under Section 27 of the NDPS Act and is sentenced to undergo further imprisonment for one year and to pay a fine of Rs.500/- and in default, of fine to undergo further imprisonment for 7 days. 2.1 Though charge was framed against accused No. 1 for an offence punishable under Section 21 of the N.D.P.S. Act, no order appears to have been passed for that offence qua accused no. 1. State has not preferred any acquittal appeal against accused No. 1 for "no order" passed for an offence punishable under Section 21 of the N.D.P.S. Act. 2.2 Accused No. 2 of aforesaid case has challenged that very judgment, by which, he has been convicted under Section 235 (2) of the Cr.P.C. for an offence punishable under Section 21 of the NDPS Act and is sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.1 lac and in default of fine to undergo imprisonment for one year. 2.3 Though the accused No. 2 was charged to face the trial for the offences punishable under Sections 17, 18, 20 (B) and 27 of the NDPS Act, the learned Judge of the Trial Court has acquitted him of the said offences. It may be noted that the State Government has not preferred any acquittal appeal against accused No. 2 for his acquittal from the charge of offences punishable under Sections 17, 18, 20 (B) and 27 of the NDPS Act. #. The facts leading to these present two appeals in a nutshell are as follows :- 3.1 As per the case stated in the complaint of Shri Kishorbhai Bahadursinh Jadeja on or about 23rd June, 1996, he was performing his duties as Police Sub-Inspector in Anand Rural Police Station. He received a secret information from his informant that one Prabhatbhai Mahijibhai Gohil (accused No. 1) was carrying on the business of "Ganja" and "Charas" in village Napad. He made an arrangement to call two independent witnesses, who can work as panch witnesses. Panch witnesses came in the police station. They were informed about the raid to be carried out at village Napad. For this purpose, one preliminary panchnama was drawn during the period from 17.25 to 17.35 hours. 3.2 Thereafter said Kishorsinh, in company of Head Police Constables Udesinh and Sattarmiya and Police Constable Balvantsinh, left Anand Rural Police Station for Napad by a Government Vehicle. When they reached near Bhathiji Temple in village Napad, on seeing them two persons started to run away from the place. The police persons immediately caught hold of them. They were asked to state their names and addresses. One of them stated his name to be Prabhatbhai Mangabhai resident of village Napad - Vanta (who is appellant of Criminal Appeal No. 1029/97). Second person stated his name to be Ramanbhai Becharbhai, resident of village Napad (appellant of Criminal Appeal No. 987/97). Said Kishorsinh Jadeja suspected that said two persons were having some contraband articles prohibited under the NDPS Act and therefore, he apprehended them. He asked these two accused as to whether they wanted to be searched in his presence or they wanted to be searched in presence of some superior officer. Thereupon, the accused informed the complainant that they wanted to be searched in presence of other superior officer. Complainant drew a panchnama for the events transpired upto this stage in presence of two panch witnesses, at 18.15 hours. 3.3 Thereafter, the complainant made a phone to his superior officer Shri Ramjibhai Darpanbhai Chaudhari, who at relevant point of time, was performing his duties as Circle Police Inspector, Anand. On receiving information, Shri Chaudhari arrived at the place where accused were kept standing by the complainant. Shri Chaudhari informed that two accused that he wanted to search them and asked them as to whether they have any objection for such search. Accused replied that they had no objection. Thereafter, Shri Chaudhari in presence of two panch witnesses, searched both the accused one by one. On search being made of a 'person' of accused No. 1- Prabhatbhai, three small packets of plastic were found from the pocket of "Zabhbha". On smelling that article of three small packets, it was found that it was an opium. From another pocket of "Zabhbha" of accused No. 1, currency notes of Rs.150/-were found. 3.4 Then personal search of accused No. 2 Ramanbhai Bechar was made. On search being made 28 small balls wrapped in white paper were found from the pocket of trouser worn by accused No. 2. On seeing that small balls, it was found that small balls were of "Charas". From the pocket of Shirt, currency notes of Rs.400/were found from accused No. 2. 3.5 Thereafter, house of accused No. 1 was searched in presence of panch witnesses. On search being made, seven small packets of "Ganja" and 29 small packets of "Ganja-Powder" were found from the house of accused No. 1. On weighing that articles, it was found that 7 small packets of "Ganja" were weighing in all 70 grams, while 29 small bags of 'Ganja Powder" were found totally weighing 60 grams. 3 small packets of opium weighing 30 grams were found from the house of the accused No. 1. One scale and weight measure of 50 grams were also found from the house of the accused No. 1. 3.6 As per the prosecution case, weight of 28 small balls of "Charas" was 14 grams. Complainant seized all these muddamal articles under panchnama. Representative samples of each article were prepared, properly packed and duly sealed in presence of panch witnesses. For this work, the complainant had drawn a panchnama on the spot. That panchnama came to be completed at 20 hours. Thereafter, complainant prepared his complaint against both the accused. Thereafter, the complainant lodged his complaint in Anand Rural Police Station at 22.05 hours. That complaint came to be registered as CR. No. Proh. 341 of 1996. The complainant handed over all the muddamal articles seized from the accused. He also handed over the custody of both the accused to the PSO of Anand Rural Police Station. Thereafter, PSO of Anand Rural Police Station, entrusted the investigation of the case to Shri R.B. Chaudhari. He recorded police statements of witnesses, who were conversant with the facts of the case. The representative samples of muddamal articles were sent to Forensic Science Laboratory ("F.S.L." for short). On receipt of report of FSL, the investigating agency filed chargesheet against both the accused on or before 14.6.1996. That chargesheet came to be registered as Special NDPS Act No. 9 of 1996. 3.7 Learned Additional Sessions Judge, Nadiad, framed a charge at Ex.3 against both the accused on 18.6.1997. As per the charge Ex. 3, both the accused are charged for the offences punishable under Sections 17, 18, 20 (B), 21 and 27 of the NDPS Act. On recording plea of both the accused, accused pleaded not guilty to the charge and they claimed to be tried. Therefore, the prosecution examined following five witnesses to prove the case against both the accused. (i) P.W.-1 Udesibhai Roopchand Bhatiya, Ex.10 (Panch witness No. 1 ) (ii) P.W.-2 Kishorsinh Bahadursinh Jadeja, Ex. 12 (complainant) (iii) P.W.-3 Police Head Constable Udesinh Vadisinh, Ex. 15 (who was worked in the office of Circle Police Inspector, Anand Rural Police Station) (iv) P.W.-4 Arvindbhai Muljibhai, Ex. 23 (v) P.W.-5 Ramjibhai Darpanbhai Chaudhari, Ex. 24, (Investigating Officer) The prosecution also produced following documents alongwith other documents in support of their case against accused. (i) Panchnama Ex. 11 (ii) Complaint Ex. 13 (iii) Original Entry No. 19 made in the Station Diary of Anand Rural Police Station at page No. 61, Ex. 14. (iv) Report of the FSL, Ex. 26. #. On recording of evidence of prosecution witnesses, was over, the circumstances, appearing against both the accused were brought to the notice of and explained to accused for which further statements of each accused was recorded below his plea. Both the accused have denied practically the entire case of the prosecution. It is their case that a false case has been lodged against them. Thereafter, after hearing the arguments of the learned advocates for both the parties and on appreciating the evidence led by the prosecution, learned Judge of the Trial Court rendered his judgement Ex.28 on 11.9.1997, whereby, both the accused have been convicted and sentenced as stated earlier. #. Being aggrieved against and dissatisfied with the said judgement of conviction and sentence, both the accused have preferred their appeals, separately as stated earlier. #. We have heard Shri D.M. Shah, learned advocate for the Appellants and Mr. B.Y. Mankad, learned APP for the respondent State in detail at length. Shri D.M. Shah, learned advocate for the appellants has taken us through the oral as well as documentary evidence led by the prosecution and also the impugned judgement challenged in these appeals. #. Shri D.M. Shah, learned advocate for the appellants has taken before us the following three main contentions:- (i) When the complainant received a secret information from his informant, he, by not taking down that information on paper, contravened the provisions of Section 42 of the NDPS Act. (ii) The complainant and Shri R.B. Chaudhari both have contravened the provisions of Section 50 of the NDPS Act. (iii) The case against accused No. 2 is not proved and that accused No. 2 has been wrongly convicted for an offence under Section 21 of the NDPS Act. #. Shri B.Y. Mankad, learned APP has vehemently argued that the complainant had taken down the information in the station diary and therefore, Section 42 of the NDPS Act has been complied with. He has further argued that accused were given option for being searched in presence of either complainant or superior officer and therefore, Section 50 of the NDPS Act has been complied with. So far as the conviction of accused No. 2 for an offence punishable under Section 21 of the NDPS Act, is concerned Shri Mankad has advanced no arguments. #. We have considered the submissions made by learned advocates for both the parties. We have reappreciated the evidence by reading each deposition in between the lines. We have also perused the documentary evidence on the record. As deposed to by complainant Shri Kishorsinh Jadeja when he was on duty as PSI Anand Rural Police Station on 23.6.1996 at about 17.35 hours, he received a secret information from the informant. He reduced that information in writing by making an entry Ex.14 in station diary. As per this entry Ex. 14, he left police station for the purpose of investigation with regard to one CR. No. M. Case 16 of 1996 and when he was on the way, the informant informed him that Prabhatbhai was selling intoxicant substance like Ganja and opium at village Napad, Vanta. As he is a PSI, he is not an empowered officer to carry out the raid under the NDPS Act and therefore, as per Sub-section (2) of Section 42 of the NDPS Act, immediately on receipt of information, he reduced it into writing which is at Ex.14. He was further required to send a copy of said information to his immediate superior officer within 72 hours. In this case, copy of Ex. 14 has not been separately sent by complainant to his superior officer. There is nothing on record to satisfy this court that copy of Ex. 14 was sent to Circle P.I. or the DSP, who are immediate superior officers for the complainant. ##. As per the case of the prosecution, immediately after personal search of each accused was carried out, house of accused No. 1 was searched. As per Section 41 of the NDPS Act, the officer, who wants to search the premises like house, has to obtain a warrant from the Judicial Magistrate empowered by the State Government. Here in this case admittedly, the complainant and Shri R.B. Chaudhari in company of other police officers, raided the house of accused No. 1 situated at village Napad during the period from 18.15 hours to 20.00 hours. As per Section 42 (1) of the NDPS Act, the empowered officer can search the building, conveyance or enclosed place between sunrise and sunset. Here in this case, house of Accused No. 1 was searched after sunset because panchnama Ex.11 clearly shows that panchnama was completed at 20-00 hours. If, there is some urgency or emergency for raid to be carried out in the house after sunset, the empowered officer can do it but for that he has to record grounds to carry out the raid after sunset. Proviso of Sub-section (1) of Section 42 of the NDPS Act reads as under :- "Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry ; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance and (d) detain and search, and, if he thinks proper, arrest any person who he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. " ##. Here in this case, admittedly, neither the complainant nor Shri Chaudhari prepared a writing showing the grounds for raid to be carried out in the house of accused No. 1, after sunset. Thus, in this case, house of accused No. 1 was raided and searched by complainant and Shri Chaudhari, without obtaining a warrant from the Judicial Magistrate and that too after sunset. Thus, the provisions of Sections 41 and 42 of the NDPS Act are clearly violated by the Investigating Agency. ##. In case of STATE OF PUNJAB VS. BALBIR SINGH, reported in (1994) 3, SCC p. 299, the Hon'ble Supreme Court has considered various provisions of the NDPS Act and after considering Sections 41, 42, 43 and 51 of the NDPS Act, it reached to certain conclusions, which are set out in para 25 of the said decision. Under Section 42 (1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. It has further been held that to this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. It is further held that under Section 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent, it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. Here in this case, Shri Kishorsinh Jadeja received secret information from his informant. He took down that information by making entry at Ex.14 in station diary. There is no evidence whatsoever to show that he sent a copy of such information to his immediate superior officer. Here in this case, it is an admitted fact that Kishorsinh Jadeja after receiving secret information, left Anand Rural Police Station for Napad by travelling in a Government Vehicle. As per panchnama Ex.11, they left Anand Rural Police Station at 17.35 hours. As per his evidence, when they reached Napad, they saw two persons running in suspicious condition. That two persons were caught hold of by police persons. They were asked about their names and addresses. Even they were informed that police had a reasonable doubt for any intoxicant substance in their possession and for that, they (police) wanted to search them (accused). For this, second panchnama was drawn at 18.15 hours. Thereafter, Shri R.D. Chaudhari, who was called by making a phone to him, reached to that place and in presence of panch witnesses, search of each accused was made and thereafter, house of accused No. 1 was searched. That panchnama was drawn and completed at 20.00 hours. Thus, it can be said that house was searched any time in between 18.30 hours and 20.00 hours and thus, from the record it can be said that house was searched after sunset. Under these circumstances, search of house of accused No. 1 was made after sunset without warrant and therefore, this is a case in which, there is a clear cut violation of Sections 41 and 42 of the NDPS Act. The provisions of that sections are mandatory and as there was a contravention of said two sections, it affects the prosecution case and vitiates the trial. The learned Judge has lightly and casually dealt with this subject and on this score, the judgement of the trial Court is required to be set aside. ##. Shri D.M. Shah, learned advocate for the appellants has vehemently argued that in this case, before search of "person" of each accused was made by Shri Chaudhari in presence of panch witnesses, Section 50 of the NDPS Act was not complied with by them. From panchnama Ex.11, it appears that immediately after catching hold of two accused by police, Shri Kishorsinh Jadeja asked accused to state their names and addresses. Accused gave their names and addresses, which were taken down by Shri Jadeja in second part of panchnama Ex.11. Thereafter, Shri Jadeja informed accused that police had a reasonable doubt that they had some intoxicant substance and therefore, police wanted to search them. It is further stated in the panchnama that Shri Jadeja informed and asked both the accused as to whether they wanted to give search to him or whether they wanted to be searched in presence of some superior officer. As stated in panchnama both the accused informed Shri Jadaje in presence of panch witnesses that they wanted to be searched in presence of some superior officer. Shri Jadeja has deposed in his evidence that he apprehended both the accused and he asked them as to whether they would give search to him or whether they wanted to be searched in presence of some other officer. He has further deposed that accused informed him that they wanted to be searched in presence of some higher officer. There is no reference with regard to compliance of Section 50 in the complaint - Ex.12 lodged by Mr. Jadeja. Shri Chaudhari in whose presence search was made has deposed that he informed accused that they (police) had doubt for some drugs with them (accused) and for this he informed both the accused that they were at liberty to search police persons, if they wanted to do so and except this, he had no other talk with the accused. In cross-examination, he has specifically deposed that he did not inform the accused that they had a right to be searched in presence of a Magistrate. By placing reliance upon the aforesaid evidence, Shri Shah has vehemently argued that in this case, provisions of Section 50 are not complied with and therefore, prosecution is vitiated and under the circumstances, accused be acquitted by allowing their respective appeals. ##. Shri Shah has argued that it is a right of accused to be informed of, before carrying out search of his "person" that his "person" can be searched either in presence of Gazetted Officer or a nearby Magistrate. Shri B.Y. Mankad, learned APP for the State has argued that looking to evidence led