CR.A/966/1998 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.966 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE H.B.ANTANI ============================================================== 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 - Appellant Versus ABDULKARIM RUMALKHAN SOLANKI - Respondent ============================================================== Appearance : MR KT DAVE, APP for Appellant. MR SR DIVETIYA for MR RAJESH M AGRAWAL for Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 06/02/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short) questions legality of judgment dated August 3, 1998 CR.A/966/1998 2/24 JUDGMENT rendered by the learned Special Judge & Additional Sessions Judge, Banaskantha at Palanpur, in Sessions Case No.105 of 1995 by which the respondent is acquitted of the offences punishable under Sections 20(b), 22 read with Section 29 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (“the Act” for short). 2. The facts emerging from the record of the case are as under: In the month of May 1995, Mr.J.J.Joshi was discharging duties as Deputy Superintendent of Police, C.I. Cell, C.I.D. Crime, Ahmedabad. On May 12, 1995, he received an information from his informant that a person named Abdul Karim Rumalkhan Solanki of Village Solankiya, Taluka Shiv, District Badmer, Rajsthan, was to pass in a private jeep bearing registration No.GJ-2-A-2573 on May 13, 1995, from Deesa towards Ahmedabad between 1.00 P.M. and 4.00 P.M. with big quantity of charas. On receipt of the information, Mr.J.J.Joshi informed his immediate official superior, i.e. Mr.Saikiya, who was then Deputy Inspector General of Police, Crime, and produced his informant before Mr.Saikiya. Mr.Saikiya also verified the information from the informant, which the informant had conveyed to Mr.Joshi. After verifying the information conveyed by the informant, D.I.G of Police Mr.Saikiya, CR.A/966/1998 3/24 JUDGMENT directed Dy.S.P. Mr.J.J.Joshi to arrange a raid. As per the instruction given by Mr.J.J.Joshi, Police Inspector Mr.I.J.Pathan, Police Inspector Mr.N.P.Raijada, Police Inspector Mr.S.C.Parmar, Police Inspector Mr.B.M.Ansari, and Head Constable Mr.Sirajkhan H. Pathan remained present in the early morning on May 13, 1995 at the office of Mr.J.J.Joshi. Mr.J.J.Joshi instructed Head Constable Mr.Sirajkhan to requisition services of two panch-witnesses. Accordingly, Head Constable Sirajkhan called two persons, i.e. (1) Bahadursinh Khengarji Sisodiya and (2) Vajubhai Naranbhai Gadhvi. The two persons summoned by Head Constable Mr.Sirajkhan were interrogated by Dy.S.P. Mr.Joshi. The two persons summoned expressed their willingness to act as panch- witnesses. Therefore, first part of the panchnama was drawn in the office of Dy.S.P. Mr.Joshi between 7.00 A.M. and 7.30 A.M.. Thereafter, the members of the raiding party reached Aseda Canal in three different government jeeps at about 12.15 hours in noon. The members of the raiding party maintained a vigil near Aseda Canal. PI Mr.Pathan and PI Mr.Parmar, who were occupying jeep bearing registration No.GJ-1-G-1348 were instructed to notice jeep bearing registration No.GJ-2-A-2573 and give appropriate signal after following the same so that the jeep could be intercepted. Jeep bearing registration No.GJ-2-A-2573 was spotted coming near Aseda Canal at CR.A/966/1998 4/24 JUDGMENT about 1.30 P.M. Thereupon, a signal, as instructed above was given by PI Mr.Pathan and, therefore, two other jeeps were brought on the road as a result of which, the driver of the jeep bearing registration No.GJ-2-A-2573 had to halt his jeep. The driver, cleaner and another occupant of the jeep bearing registration No.GJ-2-A-2573 were made to alight from the jeep. On interrogation, the driver disclosed his name to be Akhtar Husain Mohmed Husain Shaikh whereas another person disclosed his name as Ashrafbhai Hajibhai Shaikh, who was cleaner of the jeep, and the third person disclosed his name to be Abdul Karim Rumalkhan Solanki (i.e. the respondent). Dy.S.P. Mr.Joshi informed the respondent that an information was received that he was carrying large quantity of charas and, therefore, it was necessary to search the jeep. Before effecting the search of the jeep, Dy.S.P. Mr.Joshi offered the respondent to search the jeep in presence of a magistrate, but the said offer was declined by the respondent. Thereupon, the jeep was searched. The search resulted into find of 372 Kilograms of charas. Dy.S.P. Mr.Joshi demanded pass or permit from the respondent authorizing him to possess charas in such a big quantity, but none could be produced by the respondent. Appropriate samples were drawn and sealed. Thereafter, Dy.S.P. Mr.Joshi reduced his complaint into writing and produced the samples, muddamal, panchnama, his complaint and the CR.A/966/1998 5/24 JUDGMENT respondent before Deesa Rural Police Station. On the basis of the complaint lodged by Dy.S.P. Mr.Joshi, offences punishable under the provisions of the Act were registered against the respondent. After registering the offences, Dy.S.P. Mr.Joshi asked the Police Officer in charge of Deesa Rural Police Station to hand over him the samples drawn as well as muddamal with the accused and, thereafter, went to Narol, Ahmedabad, in the hope that he would be able to apprehend the person to whom delivery of big quantity of charas was to be effected by the respondent. At Narol, Dy.S.P. Mr.Joshi maintained a watch, but none came to take delivery of charas. Therefor, from Narol, Ahmedabad, he returned to Deesa and produced the respondent before the learned Judicial Magistrate First Class, Deesa. Except the samples drawn, Dy.S.P. Mr.Joshi again handed over the muddamal to Deesa Rural Police. The complaint lodged by Dy.S.P. Mr.Joshi was investigated by himself. He recorded statement of those, who were supposed to be conversant with the facts of the case. The samples drawn were sent to Forensic Science Laboratory for analysis. The report of the analysis indicated that the substance analyzed was charas within the meaning of the Act. On completion of the investigation, the respondent was chargesheeted in the Court of learned Special Judge, Banaskantha at Palanpur, on the basis of which, Sessions Case No.105 of 1995 was CR.A/966/1998 6/24 JUDGMENT registered against him. In the charge-sheet, other five accused, i.e. (1) Muso of Pakistan; (2) Mohib Haji Rahim residing at Rikhiyani, Gadra Road Police Station, District: Badmer, Rajsthan; (3) Haiderkhan Aklukhan Sond residing at Solankiya, Taluka: Shiv, District: Badmer, Rajsthan; (4) Ayubkhan @ Iqbalkhan Umarkhan @ Takshirkhan residing at 96, Hamid Building, Room No.33, Second Floor, Maulana Azad Road, Agnipada Police Station, Bombay City, Maharashtra; and (5) Imtiyazkhan Umarkhan Pathan residing at Bombay, were shown as absconding accused. 3. The learned Special Judge, Banaskantha at Palanpur, framed necessary charge against the respondent at Exh.7. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined; (1) panch Bahadursing Khengarsing Sisodiya as P.W.-1 at Exh.18; (2) Suleman Gulabbhai Shaikh as P.W.-2 at Exh.57; (3) Manager of Rest House, Deesa, i.e. Ashokkumar Vadilal Modi as P.W.-3 at Exh.60; (4) panch Ashokkumar Kishanchand Sindhi as P.W.-4 at Exh.63; (5) person who weighed the substance carried out by the respondent, i.e. Shantilal Dipaji Soni, as P.W.-5 at Exh.64; (6) Driver of Jeep in which the respondent was found carrying big quantity of charas, i.e. Akhtar Husain Mohmed Husain Shaikh as P.W.-6 at Exh.69; (7) Head Constable Lalsing CR.A/966/1998 7/24 JUDGMENT Umedsing as P.W.-7 at Exh.80; (8) PI Mr.Shivabhai Chelabhai Parmar as P.W.-8 at Exh.88; (9) Bababhai Savabhai as P.W.-9 at Exh.94; (10) Writer Head Constable Gujaraji Bhavaji Prajapati as P.W.-10 at Exh.96; and, (11) Dy.S.P. Mr.J.J.Joshi as P.W.-11 at Exh.101, to prove its case against the respondent. The prosecution also produced documentary evidence such as; forwarding letter with which muddamal was produced before the Court at Exh.16; panchnama of search of jeep and seizure of 372 Kilograms of charas at Exh.19; contract relating to jeep at Exh.59; extract from register maintained at Vishram Gruh, Deesa, at Exh.61; receipt issued by Shantilal Soni for having weighed substance found from the possession of the respondent at Exh.65; forwarding letter addressed by Mr.J.J.Joshi with which muddamal, panchnama, complaint, accused, etc. were forwarded to the Police Officer in charge of Deesa Rural Police Station at Exh.82; entry made into the Police Station Diary indicating that the complaint was registered against the respondent at Exh.84; bill indicating that ten tins were purchased by Dy.S.P. Mr.Joshi for storing muddamal at Exh.89; entry indicating that the information received was reduced into writing by Mr.Joshi at Exh.102; complaint of Dy.S.P. Mr.Joshi at Exh.103; panchnama of place from where muddamal was searched at Exh.105; reports of Forensic Science Laboratory at Exhs.107 and 108; report under CR.A/966/1998 8/24 JUDGMENT Section 42 subsection (2) of the Act at Exh.109; reasons of arrest communicated to the respondent at Exh.111; report under Section 57 by Mr.Joshi to his immediate official superior as required by Section 57 of the Act at Exh.112; etc. in support of its case against the respondent. 4. After recording of evidence of the prosecution witnesses was over, the learned Special Judge explained to the respondent the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code. In his further statement, the respondent claimed that a false case was foisted upon him. However, he did not lead any evidence in his defence. 5. On scrutiny of the evidence adduced by the prosecution, the learned Judge held that though the offending substance was seized near Aseda Canal, the same was not deposited with Deesa Rural Police Station, but the muddamal with the respondent was taken to Ahmedabad, which was a suspicious circumstance and tampering with muddamal was not ruled out. The learned Judge noticed that while sealing the samples drawn, the slips bearing signatures of panch witnesses were not affixed on the samples, but were kept loose and held that tampering with CR.A/966/1998 9/24 JUDGMENT the samples drawn was also not ruled out. According to the learned Judge, Dy.S.P. Mr.Joshi had failed to submit report to the learned Magistrate as required by Section 102 subsection (3) of the Code and, therefore, the respondent was entitled to acquittal in view of the decision of the High Court rendered in Shivabhai Gajmalbhai vs. State of Gujarat, 1996 (2) G.L.R. 64. The learned Judge found that the time at which the members of the raiding party reached Aseda Canal and seized offending substance from the jeep differs as mentioned by the Police Officers and the jeep driver Akhtar Husain as a result of which, the case of the prosecution was suspicious. The learned Judge noticed that the two panchas were not local panchas, asked to witness the search of the jeep and seizure of charas therefrom, but selected from Ahmedabad, which was also a suspicious circumstance. In view of abovereferredto conclusions, the learned Judge has acquitted the respondent vide judgment and order dated August 3, 1998 giving rise to instant appeal. 6. This Court has heard Mr.K.T.Dave, learned Additional Public Prosecutor for the appellant-State, and Mr.S.R.Divetia, learned counsel appearing for Mr.R.M.Agrawal, learned counsel of the respondent, at length and in great detail. This Court has also CR.A/966/1998 10/24 JUDGMENT undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 7. The plea that the report as contemplated by Section 102 subsection (3) of the Code was not forwarded by Dy.S.P. Mr.Joshi to the learned learned Magistrate and, therefore, the case of the prosecution is doubtful, cannot be accepted. It is true that after construing the provisions of Section 52 subsection (3) and Section 51 of the Act, the Division Bench of this Court in Shivabhai Gajmalbhai (supra), has held that the provisions of the Act are not inconsistent with the provisions of Section 102(3) of the Code and, therefore, non-forwarding of the report under Section 102(3) of the Code, vitiates the trial. However, this Court is of the opinion that while laying down the above noted principle, the Division Bench had no occasion to consider the question whether the provisions of Section 102 subsection (3) of the Code would be applicable to search and seizure effected under the provisions of the Act of 1985. The Act of 1985 is a code in itself. In view of Section 51 of the Act, the provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made CR.A/966/1998 11/24 JUDGMENT under this Act. Under the Act, the authorized officer under Sections 41 and 42 of the Act or the officer deemed to be so authorized in view of Section 74 of the Act, is required to follow special procedure laid down under Sections 50, 52, 55 and 57 of the Act. Section 57(2) of the Act, inter alia, obliges the officer effecting seizure to report the seizure to his immediate official superior. The officer acting under Sections 41 and 42 of the Act is required to maintain record of following the provisions aforesaid. Non-observance of these provisions may in a given case vitiate the trial. When the State Government decides to authorize officer of the department other than the police to exercise power under Sections 41 and 42 of the Act, the provisions of Section 156 of the Code will not be attracted. The Police Officer authorized to act under the Act either in view of Section 74 of the Act as they would be deemed to have been appointed under the Act and appointed under the Act, are required to follow the procedure as provided under Sections 50, 52, 55 and 57 of the Act. Seizure contemplated by Section 102(3) by any police officer is quite different than the seizure contemplated under the Act by certain gazetted and specially empowered officers. To this extent duty cast to report the seizure to the learned Magistrate under Section 102(3) will have to be regarded as inconsistent with duty to report seizure by the specially CR.A/966/1998 12/24 JUDGMENT empowered officer under Section 57(2) of the Act to his immediate official superior. It will not be out of context to mention in this case that seizure was conducted by Mr.Joshi, who was then Dy.S.P.. He was a gazetted officer as well as an empowered officer under Section 41 subsection (2) of the Act in view of Notification No.GH-L.14-NDS-1087(i)-M. Dated 15th June 1987, issued by the Government of Gujarat in exercise of powers conferred on it by subsection (2) of Section 41 of the Act. Mr.Joshi had not effected the search of the jeep and seizure of charas under the provisions of the Code, but had effected the search of jeep and seizure of charas pursuant to special empowerment made in his favour under Section 41(2) of the Act. Therefore, this Court is of the firm opinion that it was not necessary for him to report the search and seizure to the learned Magistrate as contemplated under Section 102(3) of the Code. The search and seizure effected under the Act will have to be regarded as inconsistent with the search and seizure to be effected under the Code as the officer effecting the search and seizure under the Act has to follow a special procedure. Therefore, the view taken by the Division Bench in Shivabhai Gajmalbhai (supra), cannot be accepted for coming to the conclusion that the trial has vitiated as the report was not forwarded by Dy.S.P. Mr.Joshi to the learned Magistrate as contemplated by Section 102(3) CR.A/966/1998 13/24 JUDGMENT of the Code. The judicial comity and discipline demands that the matter will have to be referred to a larger Bench of this Court as this Court is not in agreement with the view expressed by the Division Bench in abovereferredto decision. However, it is not necessary to undertake such exercise because of the interpretation of Section 102(3) of the Act. 8. The language employed by the legislature in subsection (1) of Section 102 of the Code deserves to be noticed, which reads as under: “102(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.” In this case, there was no suspicion in the mind of Dy.S.P. Mr.Joshi that an offence was committed by the respondent. In fact, on May 12, 1995, a specific information was received by Dy.S.P. Mr.Joshi that a person named Abdul Karim Rumalkhan Solanki of Village Solankiya, Taluka: Shiv, District: Badmer, Rajsthan, was to travel in the private jeep bearing registration No.GJ- 2-A-2573 with big quantity of charas on May 13, 1995 between 1.00 P.M. and 4.00 P.M. and that he was to come from Deesa to deliver the quantity of charas at CR.A/966/1998 14/24 JUDGMENT Ahmedabad. Further, the information received by him was verified by D.I.G. of Police Mr.Saikiya, who had directed him to arrange a raid. Thus, Dy.S.P. Mr.Joshi had no suspicion as contemplated by Section 102(1) of the Code. 9. This question has been squarely considered by the Division Bench of this Court in Abdul Kader Jusab Sandhi & Another vs. State of Gujarat, 2002 (2) G.L.R. 1212. The Division Bench has, inter alia, held as under in paragraph 17.1 of the reported decision. “... Section 102 of the Code of Criminal Procedure will come into picture only if the police officer has seized the property which is alleged or suspected to have stolen or is found under circumstance which creates suspicion of the commission of any offence. If the property is seized only under these circumstances, then the provision of sub-sec. (3) of Sec.102 is required to be followed. In the instant case, there was no question of finding a person with a property under circumstances creating suspicion of commission of any offence. But, in fact, persons were found with contraband articles in their possession and they were arrested in view of the provisions contained under the N.D.P.S.Act”. In view of the principles laid down in later decision of this Court, this Court is of the opinion that provisions of Section 102 of the Code are not applicable to the facts of the case on hand. 10. Even if one were to hold that the provisions of CR.A/966/1998 15/24 JUDGMENT Section 102(3) of the Code are applicable to search of vehicle and seizure of contraband substance therefrom under the Act, this Court finds that report under Section 157 of the Code was forwarded to the learned Magistrate on the next day, i.e. as early as possible and without any avoidable delay. While forwarding the report under Section 157 of the Code, all necessary facts such as information received, search of the jeep, seizure of contraband substance namely charas and its quantity etc. were mentioned, which will have to be regarded as report under Section 102(3) of the Code. It is well to remember that no form of submitting report under Section 102(3) of the Code is prescribed under the Code. Therefore, the report submitted by the Police Officer under Section 157 of the Code will have also to be regarded as report contemplated under Section 102(3) of the Code. There can always be a combined report under Section 102(3) and Section 157 of the Code. In view of this discussion, the plea that there is breach of provisions of Section 102(3) of the Code and, therefore, the respondent is entitled to acquittal, cannot be accepted and is hereby rejected. 11. Though the first plea raised on behalf of the respondent is not accepted by the Court, this Court finds that the prosecution has failed to prove its case against the respondent beyond reasonable doubt. According to the CR.A/966/1998 16/24 JUDGMENT prosecution, the jeep in which the respondent was found transporting the charas was intercepted near Aseda Canal and after effecting seizure, the muddamal was handed over to Police Officer in charge of Deesa Rural Police Station. However, the testimony of Writer Head Constable Gujaraji Bhavaji Prajapati, who was Police Officer in charge of Deesa Rural Police Station, recorded at Exh.96 would indicate that the muddamal, in fact, was not handed over to him and was kept in the jeep and that after lodging the complaint, muddamal and the accused were taken by Dy.S.P. Mr.Joshi with him to Ahmedabad. Normally, the muddamal handed over by a Police Officer at the Police Station cannot be taken back in his custody without appropriate orders from the concerned learned Magistrate. This scheme is envisaged by the provisions of Sections 51 and 55 of the Act. Section 55, inter alia, provides that an officer in charge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, the articles seized under the Act within the local area of that police station and which may be delivered to him. The record shows that the muddamal was handed over to the Police Officer in charge of Deesa Rural Police Station for safe custody. Therefore, it was not open to Dy.S.P. Mr.Joshi to take back the custody of the muddamal and move with the muddamal from Deesa to Ahmedabad, and Ahmedabad to Deesa. CR.A/966/1998 17/24 JUDGMENT Moving with muddamal and samples drawn from one place to another after they were handed over on paper to Deesa Rural Police Station, does not rule out possibility of tampering with the same. This breach on the part of Dy.S.P. Mr.Joshi will have to be viewed in the light of other deficiencies emerging from the record of the case. 12. The record shows that after drawing samples, Dy.S.P. Mr.Joshi had kept the slips bearing signatures of the panch-witnesses in loose condition and had not affixed the slips on the tins. The correct procedure of the sealing has been laid down by the Division Bench of this Court comprising B.C.Patel, J (as he then was) and A.L. Dave, J., vide judgment dated August 17, 2001 rendered in Criminal Appeal No.323 of 1996, which was filed by Jitendra @ Sanjaykumar Suryakant Desai against the State of Gujarat. In the said unreported decision, the Division Bench of this Court has held as under: “It is very clear from the evidence of the Investigating Officer, P.S.I.-Ramgadhiya (Exh.55), Dy.S.P., A.T.S., Kantilal Modi (Exh.60) and Panch- Pareshbhai Tribhovandas Brahmbhatt (Exh.9) 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 bags, thereafter the bags were stitched and wax seals were applied. There is no dispute that the Seal remains in custody of the Police. The possibility of tampering with the muddamal at a later stage and then again resealing CR.A/966/1998 18/24 JUDGMENT the same by the Investigating Agency cannot be ruled out. The very purpose behind carrying out the search, taking of the sample and sealing in presence of Panch witnesses is to ensure that there is no scope of any mischief in procedure required to be followed. At the time of sealing, slips containing signatures of Panch witnesses as 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 articles 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 here, as discussed earlier, 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