CR.A/99319/1999 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 993 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== STATE OF GUJARAT Versus FAKIR RASULSHA MOHMEDSHA ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MR JM BUDDHBHATTI for the Opponent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 07/08/2008 CR.A/99319/1999 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal calls in question the correctness of judgment and order dated 10.08.1999 passed by the Additional Sessions Judge, Bhavnagar camp at Mahuva in Special Case No. 8 of 1998. By the impugned judgment, the Trial Court has acquitted the present respondent- original accused of the offence punishable under Sections 8 and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The Trial Court found that the evidence of police officials constituting the raiding party who on secret information searched the accused and found from his possession two plastic bags, each containing 500 grams ganja, is not reliable and free from doubt. The Trial Judge noticed several material discrepancies in their evidence which was examined cautiously in view of the fact that the panch witness and the person who was called by the police party with weights to weigh the contraband had turned hostile and did not support the case of the prosecution. The Trial Court found that the discrepancies were of vital and material aspects, rendering the entire search and seizure suspect and, therefore, acquitted the present respondent- original accused. 3. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and with his assistance have perused the judgment and gone through the record of the case. 4. It emerges from the evidence on record that the presence of Dr. Surendrakumar Palanpura (PW 4), a doctor working with Talaja CR.A/99319/1999 3/4 JUDGMENT Community Health Center and a gazetted officer, who the police claim accompanied them in the raid and remained present throughout the search is highly doubtful. The witness has admitted in his cross examination that on 11.01.1998, the day when the raid was conducted, he had gone to the health center at about 9.00 am and remained there till 1.00 pm. Thereafter, he again returned to the health center at around 4.00 pm. At that time, he was called by someone from the public to the police station. Though a register is kept at the health center for logging the time of arrival and departure, he did not make any entry in the said register while leaving for the police station. It has also come in evidence that PW 4 has remained a panch witness in about 3-4 other raids carried out by the officials of Talaja Police Station. Also, the witness, while maintaining that he remained present during the entire raid, has admitted that though his signature appears in the preliminary panchnama, it does not appear at the end of panchnama prepared at the scene where accused was searched and contraband recovered from his possession. The witness has also admitted that in the past there has been an instance where the police had obtained his signature on a seizure panchnama later on though he had not participated in the raid. Considering such evidence, we are in agreement with the finding of the Trial Court that the prosecution has not proved conclusively the presence of Dr. Palanpura at the time of raid and the possibility of him having been got up later on to lend credence to the police story cannot be completely ruled out. 5. Also, we notice that there is great variance in the evidence of police officials on the manner in which muddamal samples were packed and sealed. Further, witness Veljibhai Ranchhodbhai (PW 7) who was in charge of the malkhana and had handled the muddamal states that he received the same on 12.01.1998. No explanation has been offered by CR.A/99319/1999 4/4 JUDGMENT any witness for the prosecution as to where the muddamal was kept after seizure in the evening of 11.01.1998 till it was given to PW 7 in the morning of 12.01.1998. This is a serious infirmity and though the samples were received in the Forensic Science Laboratory in a sealed condition, the possibility of them being tampered prior to their deposit in the police station cannot be ruled out. Also, no register has been produced by the prosecution to show as to who carried the samples to the Laboratory nor has it been proved by the prosecution that provision of Section 55 of the Act has been complied with. 6. Thus, we see that during the search, the prosecution was not vigilant to follow the law. So, is the case, subsequently, when they were to ensure that the recovered articles remains safe and there is no possibility of tampering. 7. Under the circumstances, we feel that the Trial Court has rightly analyzed the evidence and given sufficient and cogent reasons for acquitting the accused. No interference is called for by this Court. Accordingly, the appeal must fail and is, therefore, dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd