CR.A/196/2003 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 196 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AMRUDHAM PAIKIR SWAMI SUBRAMANIYAM (A.P.S.MANI) - Appellant Versus STATE OF GUJARAT – Respondent. ========================================================= Appearance : MR JM BUDDHBHATTI for Appellant. MR UR BHATT, APP, for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 25/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/196/2003 2/10 JUDGMENT The appellant challenges the judgment and order rendered by the learned Special Judge, Jamnagar, on 19.12.2002, in Special Criminal Case No.1/2002, convicting the appellant for the offences punishable under Sections 20(B) & 22(B) of the Narcotic Drugs and Psychotropic Substances Act,1985 [“NDPS Act” for short] and sentencing the appellant to undergo R.I. for a period of ten years and to pay a fine of Rs.1 Lac for the offence under Section 20(B) and also to undergo R.I. for ten years and to pay a fine of Rs.1 Lac, in default, to undergo R.I. for one year. Both the sentences are ordered to run concurrently. 2. The brief facts of the case are that the investigating agency arrested the appellant-accused in connection with possession of contraband ganja weighing 2.250 K.grams on 27.12.2001. After search, the muddamal was seized by drawing a panchnama in presence of panch-witnesses. The samples were also drawn thereunder and sent to F.S.L. for analysis. The samples were analysised and F.S.L. Report indicated that the material seized was ganja. On the basis of that report, charge sheet was filed against the CR.A/196/2003 3/10 JUDGMENT accused-appellant and the case was numbered as Spl. Criminal Case No.1/2002 before the Special Judge, Jamnagar. 2.1 After considering the evidence led before it, the trial Court came to the conclusion that the prosecution was successful in establishing the charge levelled against the appellant and recorded conviction and imposed sentence, as stated hereinabove. 3. We have heard learned advocate Mr. Buddhbhatti for the appellant, and learned A.P.P. Mr.U.R.Bhatt for the State. We have also perused the record and proceedings. 4. The learned advocate for the appellant submitted that apart from other discrepancies, the case of the prosecution ought to have failed before the trial Court only on account of defect in the sealing procedure adopted by the investigating agency at the time of seizure and sampling. He submitted that seizure and sampling would go to the root of the entire case and, therefore, other defects would be in CR.A/196/2003 4/10 JUDGMENT addition to the major defect of sealing and sampling. The learned advocate submitted that while sealing the contraband seized and samples drawn therefrom, the investigating agency has not affixed the slip/s signed by the panch-witnesses on the outer cover of the packets, but, has placed the slip/s inside the seized muddamal packet or the samples drawn therefrom. This would leave room for tampering with the muddamal seized because, without any dispute, the seal affixed is that of the Investigating Officer. He, therefore, submitted that the trial Court ought to have given benefit to the accused-appellant and acquitted him. He submitted that this Court has taken similar view in a number of cases. He relied on the following decisions; (i) Criminal Appeal No.323 of 1996 [Jitendra @ Sanjaykumar Suryakant Desai vs. State of Gujarat] decided on 17.8.2001 [Coram: B.C.Patel & A.L.Dave,JJ.] (ii) Criminal Appeal No.287 of 1999 [Ganpatram Punmaram Vishnoi v. State of Gujarat] decided on 7.5.2002 [Kshitij R. Vyas & Ravi R. Tripathi,JJ.] (iii) Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas v. State of Gujarat, 2006(1) GLH 409, wherein CR.A/196/2003 5/10 JUDGMENT the above unreported judgments have been referred to and relied on. (iv) Sohanlal Kasiram Brahmin & Anr. v. State of Gujarat & Anr. 2007(1) GLH 131. 5. The learned Additional Public Prosecutor has opposed this appeal. 6. We have considered the rival side submissions. 7. On perusal of the record, we find that the panchnama drawn at the time of seizure and drawing of sample clearly indicates that the slips signed by the panch-witnesses were placed into the packet containing the contraband article, or the samples drawn therefrom. Thereafter the packet was sealed, tied with a thread and wax-seal of the Investigating Officer was affixed. This is reflected in the F.S.L. Report as well. The FIR also indicates the same situation. 7.1 Learned A.P.P. Mr.Bhatt does not dispute the above factual aspect regarding slip being inside the cover and not affixed on the cover below the wax- seal. CR.A/196/2003 6/10 JUDGMENT 8. In our opinion, the contention regarding laxity in following the procedure relating to sealing of the seized contraband article has some substance. It is clear from the panchnama (Exh.13), FIR (Exh. 27) and FSL report (Exh. 20), so also the deposition of the raiding officer (Exh.18) that the correct procedure for sealing has not been followed to rule out the possibility of tampering with the contraband article seized or samples drawn therefrom. It is found that after drawing the samples, at the time of sealing the samples as well as the remainder of the contraband seized, the slips containing signatures of the panch- witnesses and the police officer were placed inside the packets and, therefore, the possibility of tampering with the muddamal at the later stage and then again resealing the same by the investigating agency, cannot be ruled out. The very purpose behind carrying out the search, taking of sample and sealing in presence of panch-witnesses is to ensure that there is no scope for any mischief in the procedure required to be followed. At the time of sealing, slips containing signatures of panch-witnesses as CR.A/196/2003 7/10 JUDGMENT well as the investigating officer are affixed on the articles seized and a seal is applied over it, so that, in case of any attempt for tampering with the article seized, the seal would be broken or the slip would be torn, which would immediately reveal such an attempt. If the slip is put inside as was done in the instant case, the possibility of tampering cannot be ruled out. Under the circumstances, the procedure followed for sealing in the instant case cannot be said to be proper and free from any possibility of tampering. The procedure, therefore, cannot be said to be beyond the scope of any reasonable doubt and in that event, benefit must go to the accused. 9. This Court has taken similar view in (i) Criminal Appeal No. 323/1996, (ii) Criminal Appeal No.287/1999, (iii) Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas v. State of Gujarat, 2006(1) GLH 409, and (iv) Sohanlal Kasiram Brahmin & Anr. vs. State of Gujarat, 2007(1) GLH 131. 10. Since the defect in sealing procedure while sealing the contraband article or drawing samples therefrom would go to the root of the prosecution CR.A/196/2003 8/10 JUDGMENT case and affect the investigation and the trial and since we have found such a defect in the procedure, we do not propose to deal with the other aspects of the appeal. 11. Being conscious about the menace of narcotic drugs and psychotropic substance in the society, we only quote what has been observed by this Court in Criminal Appeal No.323/1996, as under: “It cannot be overlooked that society is facing the menace of drugs and persons involved in such drugs need to be appropriately dealt with. The society needs to be protected from persons indulging in such activities. The Legislature has, for that purpose, enacted laws with stringent arrangements. But for that purpose, the prescribed procedure has to be strictly followed by the Investigating Agency. Failure on the part of the Investigating Agency may result in non-fulfilment of the purpose behind the enactments. The Apex Court, in the case of State of Punjab v. Baldev Singh, 1993(3) GLR 2483, in paragraph 31, observed as follows: '31. There is indeed a need to protect society from criminals. The societal intent in safety will suffer if persons who commit CR.A/196/2003 9/10 JUDGMENT crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the officials concerned, so that the laxity on the part of the investigating authority is curbed.” We only hope that the authorities concerned will take appropriate action to avoid such eventualities, as in the instant case.” 12. The appeal, therefore, would stand allowed. The judgment and order dated 19th December, 2002, rendered by the learned Special Judge, Jamnagar, in Spl. Criminal Case No.1/2002 recording conviction of the appellant for the offences punishable under Sections 20(B)(II)(B) & 22(B) of the NDPS Act is hereby set aside. The appellant is directed to be released from the prison forthwith, if not required in any other case. The fine, if paid, shall be refunded. [ A.L. Dave,J.] CR.A/196/2003 10/10 JUDGMENT [ J.C.Upadhyaya,J.] (patel)