CR.A/566/2000 1/66 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 566 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 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 ? ================================================= MAQSOOD HARUN MALANI MEMON Versus STATE OF GUJARAT ================================================= Appearance : MR RR TRIVEDI for Appellant MR BIPIN BHATT for Appellant MS NANDINI JOSHI APP for Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE K.A.PUJ CR.A/566/2000 2/66 JUDGMENT Date : 29/04/2006 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. The instant appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 and is directed against the judgment and order dated 26.04.2000 delivered by the learned Additional Sessions Judge, Gondal in N.D.P.S. Sessions Case No.92 of 1999 whereby the present appellant came to be convicted for the offence punishable under Section 21 of the Narcotic Drugs Psychotropic Substances Act, 1985 and was sentenced to undergo rigorous imprisonment of ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment of one year. 2. The facts leading to the prosecution against the appellant can be depicted shortly as under: 2.1 That the incident occurred on 17.06.1999. On that day, the Police Inspector Shri Vijaybhai Jivaji Medant was in-charge of Dhoraji City Police Station, as regular Police Inspector was on leave. On that day, at CR.A/566/2000 3/66 JUDGMENT 0.05 hours along with P.S.I. Shri P. D. Jadeja, Head Constable Shri Danubha, Police Constable Shri Gajrajsinh, Police Constable Shri Dharmendrasinh, Police Constable Salim and Police Constable Shri Rupendrasinh were on night round in the city of Dhoraji. When they reached near vegetable market, a person halted the jeep of the police in which they were travelling. P.I. Shri Vijaybhai Jivaji Medant exited from the jeep and the said person informed P.I. Shri Vijaybhai Jivaji Medant that a person named Maksud Harunbhai Malani (Appellant) was selling narcotics near Panchpir Dargah. Shri Vijaybhai Jivaji Medant further informed by the said person that Maksud Harunbhai Malani had two teeth of upper jaw and three teeth of lower jaw were of gold. Therefore, to arrange the raid Shri Vijaybhai Jivaji Medant sent police constable Shri Rupendrasinh to call for two panchas. On reaching panchas near vegetable market, panchas were sounded about the raid to be carried out and both the panchas named as [1] Shri Bhupatbhai Bachubhai Hirpara Patel and [2] Shri Anilkumar Indulal Hirani expressed willingness to be panch witnesses. Thereafter, the panchas searched police party and they were also searched by the police, but nothing objectionable was found. A preliminary panchnama to this effect was prepared from 00.30 hours to 00.45 hours. The panchnama was CR.A/566/2000 4/66 JUDGMENT signed by both the panchas and was also signed by the Police Inspector Shri Medant. In the meanwhile, before starting for Panchpir Dargah, Shri Vijaybhai Jivaji Medant informed Deputy Superintendent of Police, at Jetpur. Thereafter, all the police personnel as well as two panchas reached near Panchpir Dargah and kept police jeep at little distance. When police party along with panchas reached near the place of incident, the appellant stood up and, therefore, he was surrounded by the police. When his name was asked, he stated that his name was Maksud Harunbhai Malani, resident of Jetpur. Shri Vijaybhai Jivaji Medant offered his identification to the appellant and further informed the appellant that they had information that the appellant was selling narcotic drugs and, therefore, the appellant was required to be searched. The appellant was further informed by P.I. Shri Vijaybhai Jivaji Medant that if the appellant wished, he might be searched in presence of any other gazetted officer or Magistrate. The appellant was sounded in this respect, orally as well as in writing by a memo. The appellant did not choose his option to be searched in presence of any other gazetted officer. In the said memo, the appellant as well as two panchas signed. Thereafter, person of the appellant was searched by Shri Vijaybhai Jivaji Medant and from the right pocket of his pant, one white big packet was found and in that big CR.A/566/2000 5/66 JUDGMENT packet, there were 42 small plastic bags. In presence of panchas, when the appellant was inquired by Shri Vijaybhai Jivaji Medant in respect of these 42 plastic bags, he replied that those bags contained brown-sugar. Therefore, again Shri Rupendrasinh, police constable was sent to call for a goldsmith to weigh the substance found. After sometime, Shri Rupendrasinh along with one goldsmith Vinodkumar Tribhovandas Davada came at the spot. Shri Vinodkumar Tribhovandas Davada was made aware of the situation and he was requested to weigh the substance found from the person of the appellant. On weighing the substance by Shri Vinodkumar Tribhovandas Davada, it was found that brown-sugar containing of 42 small bags were weighing about 3.50 gram, in all. Thereafter, Shri Vinodkumar Tribhovandas Davada was instructed by Shri Vijaybhai Jivaji Medant to equally divide the substance in two samples. Thereafter, after dividing as aforesaid, both the divided quantity of substance was weighed and each divided part of the substance weighed about 1.25 gram. Both these samples were wrapped in a paper and were put in plastic bags separately. The said plastic bag, thereafter, was put in a cloth bag. Thereafter, the said two cloth bags containing two samples as above said were sealed vide seal of Police Inspector, Dhoraji. A slip containing signatures of both the panchas was also affixed in the CR.A/566/2000 6/66 JUDGMENT said samples. These two samples were seized. In addition to this, on search of person of the appellant from the left side shirt pocket, an amount of Rs.2,895/- was found. That also was seized and was put in an envelope. A list of articles seized was prepared and was given to the appellant. The said list was signed by panchas and the appellant also signed that list of seizure. A panchnama was drawn in second part in this respect and was signed by two panchas as well as P.I. Shri Vijaybhai Jivaji Medant. Thereafter, the police party and the appellant came to Police Station with muddamal seized from the appellant. There P.I. Shri Vijaybhai Jivaji Medant gave a complaint against the appellant along with muddamal seizure memo to concerned P.S.O. Shri Vikramsinh Govubha Zala. Shri Vikramsinh Govubha Zala, the then P.S.O. received the complaint as aforesaid along with forwarding letter, muddamal and other papers. He registered the complaint and the crime against the appellant. Thereafter through radio message superior officers were informed and copy of the F.I.R. under Section 154 of the Code of Criminal Procedure was forwarded to the Judicial Magistrate (First Class). Investigation was handed over to P.I. Shri Vijaybhai Jivaji Medant. The relatives of the appellant were informed about the arrest of the appellant in this crime registered. The muddamal in question was CR.A/566/2000 7/66 JUDGMENT handed over to Shri Ramjibhai Kanjibhai, Writer Constable by P.S.O. which he kept in treasury cupboard in lock and key in the crime branch. On 17.06.1999 at 16.00 hours, Shri Ramjibhai Khanabhai, police constable handed over the said muddamal to police constable Shri Dhanjibhai Unjabhai for taking away the said muddamal to F.S.L. At Junagadh. Two samples containing muddamal were given Mark A-1 and A-2. The police constable Shri Dhanjibhai Unjabhai took away the muddamal Mark A-1 on the same day at Junagadh F.S.L. Through L.C.B. Rajkot, but when he reached at Rajkot at 1.30 hours, L.C.B., Rajkot office was closed and hence, on that day, police constable Shri Dhanjibhai Unjabhai returned to Dhoraji and handed over the muddamal in the same condition to constable Shri Ramjibhai Khanabhai to keep it in a safe custody in crime branch. On next day on 18.06.1999, the said muddamal was again handed over to police constable Shri Dhanjibhai Unjabhai who in turn went to L.C.B. Rajkot to handover this muddamal to the F.S.L. Junagadh for necessary analysis of the substance found from the appellant. Necessary entries were made in muddamal register in this respect. During investigation, it was found that other three accused were also involved in brown-sugar dealing. They were arrested in the course of investigation. The progress of the investigation was intimated CR.A/566/2000 8/66 JUDGMENT by I.O. to his superior officer. Thereafter, the investigation was taken over by Shri Chandubhai Rupaji Kotak on 21.06.1999 and he submitted charge-sheet in all against the four accused including the present appellant for the offences punishable under Sections 8(c), 21 and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985. Ultimately on receiving the charge-sheet, the said case was registered as N.D.P.S. Case No.92/1999 in the Court of Additional Sessions Judge at Gondal, District: Rajkot. 2.2 The charge against all the four accused came to be framed by the learned Additional Sessions Judge at Gondal, District: Rajkot on 25.11.1999 vide Ex.11 for the offences punishable as aforesaid. The charge was denied by all the accused including the present appellant and hence, all the four accused were tried by learned Additional Sessions Judge, Gondal at District: Rajkot. 3. To prove the case, the prosecution examined fourteen witnesses. P.W.1 Bhupatbhai Bachubhai Ex.19 P.W.2 Anilbhai Indubhai Hirani Ex.20 P.W.3 Kishor Babubhai Ex.24 P.W.4 Kishankumar Kishorchandra Shukla Ex.26 P.W.5 Vinodkumar Tribhovandas Davada Ex.28 CR.A/566/2000 9/66 JUDGMENT P.W.6 Ramesh Budhram Patel Ex.30 P.W.7 Head Constable Danubha Nathubha Ex.37 P.W.8 P.S.I. Prabhatsinh Velubha Jadeja Ex.38 P.W.9 Writer Crime Police Constable, Ramjibhai Khanabhai Ex.49 P.W.10 P.C. Dhanjibhai Unjabhai Solanki Ex.51 P.W.11 A.S.I. Vikramsinh Govubhai Zala Ex.54 P.W.12 P.C. Rupendrasinh Karansinh Jadeja Ex.59 P.W.13 P.I. Vijaybhai Jivaji Medant, Ex.60 Complainant and first I.O. P.W.14 P.I. Chandubhai Rupaji Kotak Ex.76 5. In addition to this, the prosecution also produced documentary evidence like panchnama of seizure of brown-sugar from the appellant at Ex.21, intimation given to the appellant under Section 50 of Narcotic Drugs Psychotropic Substances Act, 1985 at Ex.22, list of item seized from the appellant at Ex.23, receipt given by witness Shri Vinodkumar Tribhovandas Davada, goldsmith at Ex.29, muddamal register entries at Ex.50, forwarding letters to F.S.L. at Ex.52 and 53, entry in station diary registering crime at Ex.56, arrest memo at Ex.61, complaint filed by P.I. CR.A/566/2000 10/66 JUDGMENT Shri Medant at Ex.62, intimation to relatives of appellant, progress report intimated by P.I. to D.S.P. at Ex.65, opinion of F.S.L. at Ex.80, letter receiving muddamal by F.S.L. at Ex.79 and copies of the station diary entry as to registration of crime at Ex.55 and 56. 6. Having heard both the sides, learned Additional Sessions Judge, at Gondal, District: Rajkot, after considering the evidence on record, acquitted accused No.2, 3 and 4 from the charges levelled against them, while appellant being accused No.1 was found guilty, as aforesaid and hence this appeal. 7. As being the first Appellate Court, it becomes the duty of this Court to re-appreciate the evidence with reference to the contentions raised, but before re-appreciating the evidence, it is necessary to mention brief summary of the evidence recorded before the trial Court. 8. It appears that the witnesses examined before the trial Court may be divided into two groups. In one group independent witnesses be included while in second group police witnesses be included. CR.A/566/2000 11/66 JUDGMENT 9. In group of independent witnesses, so far as the appellant is concerned, three witnesses are examined by the prosecution and they are P.W.1, Bhupatbhai Bachubhai, Ex.19 and P.W.2 Anilbhai Indubhai Hirani, Ex.20, both panchas of panchnama at Ex.21 by which the police seized the muddamal of brown-sugar from the appellant. Third independent witness is P.W.5 Vinodkumar Tribhovandas Davada, Ex.28, a goldsmith was called at the place of incident for weighing the substance recovered from the appellant. All the three above witnesses have turned hostile and have not supported the prosecution case. 10. Therefore, the case rests on the evidence of police witnesses forming the other group of witnesses. Out of witnesses examined, P.W.7 - Head Constable Danubha Nathubha, Ex.37, P.W.8 – P.S.I. Prabhatsinh Velubha Jadeja, Ex.38, P.W.12 - P.C. Rupendrasinh Karansinh Jadeja, Ex.59, P.W.13 - P.I. Vijaybhai Jivaji Medant, Ex.60 are the members of raiding party who actually raided near Panchpir Dargah and found brown-sugar from the person of the appellant. As per the prosecution case, while, P.W.9 - Ramjibhai Khanabhai, Ex.49 is a crime constable to whom muddamal was entrusted by P.W.11 - Vikramsinh Govubhai Zala, the then P.S.O. of the Dholaji City Police CR.A/566/2000 12/66 JUDGMENT Station for keeping muddamal in safe custody. P.W.11 - Vikramsinh Govubhai Zala recorded the complaint and registered the crime. While P.W.10 - Dhanjibhai Unjabhai Solanki, police constable is examined for the purpose that he obtained muddamal from P.W.9 - Ramjibhai Khanabhai for onward transmission to F.S.L. at Junagadh. 11. Having regard to the evidence of P.W.7 - Danubha Nathubha, P.W.12 - Rupendrasinh Karansinh Jadeja and P.W.13 - Vijaybhai Jivaji Medant, it appears that their evidence is similar and corroborating each other. It is necessary therefore to look at the evidence of Shri Vijaybhai Medant, P.I., and chief of raiding police party. Shri Vijaybhai Jivaji Medant in his deposition stated that he received information, while police party was in night patrolling. On receiving information, panchas were called and preliminary panchnama, the first part was prepared. The superior office i.e. Deputy Superintendent of Police was informed by him and police party reached in police vehicle near Panchpir Dargah and found the appellant there by them. Before searching, the appellant he was informed that the appellant could exercise his right to be searched in presence of any gazetted officer or Magistrate though raiding officer himself was gazetted officer. In the evidence of the complainant, it is CR.A/566/2000 13/66 JUDGMENT further stated by him that the appellant did not opt to exercise his right to be searched in presence of some other gazetted officer. The appellant was also informed about his right in writing and that he produced said writing at Ex.22. He further stated that on searching the person of the appellant from right hand pocket of the pant, one white bag was found which contained 42 small bags of plastic. On inquiring, the appellant stated that all the 42 small bags contained brown-sugar and, therefore, goldsmith was called for and the prosecution witness Vinodkumar Tribhovandas Davada being goldsmith weighed brown-sugar and found that substance was weighing 3.50 gram. This substance was divided in two parts equally and were seized and sealed in one cloth bag by seal of P.I. Dhoraji City Police Station placing slip signed by two panchas on such two samples of muddamal, then the samples were described at A-1 and A-2. The complainant - Vijaybhai Jivaji Medant further stated in his deposition that after sealing muddamal, a seizure memo was prepared and handed over to the appellant, who signed such seizure memo which he produced at Ex.23. The goldsmith - Vinodkumar Tribhovandas Davada gave receipt for weighing muddamal which he produced at Ex.29. The complainant - Vijaybhai Jivaji Medant identified muddamal in his deposition to be the same seized from the appellant. He further stated that CR.A/566/2000 14/66 JUDGMENT thereafter appellant – accused was brought to the Police Station and he gave complaint in respect of the incident to P.S.O. Shri Vikramsinh Govubha Zala P.S.O. registered the crime along with the complaint. He also handed over seizure memo, panchnama and muddamal to P.S.O. Shri Vikramsinh Govubha Zala vide Ex.64, which is a copy of wireless message informed superior officers about the incident and thereafter vide Ex.65 a letter, the District Superintendent of Police was also informed about the progress of the investigation. 12. All these four witnesses i.e. P.W. 7, P.W. 8, P.W. 12 and P.W. 13, who were members of the raiding party are extensively cross-examined by the learned advocate for the appellant. P.W. 13 - P.S.O. Vijaybhai Jivaji Medant, in his cross-examination, stated that he investigated the crime under Section 42 of the Narcotic Drugs Psychotropic Substances Act, 1985. He did not record the information he received. He informed Deputy Superintendent of Police orally and this fact was not recorded anywhere. On the date of incident, he reached at Vegetable Market Police Chowki at about 0.10 hours. He explained that he did not record information he received because if such information was recorded at Police Station, it was inevitable that the same would have taken some CR.A/566/2000 15/66 JUDGMENT time and during that period the accused might have absconded. He stated that he could not give any reasons for not recording the information received. His attention was drawn to panchnama at Ex.21 where space had been kept blank for the time of arrest of the appellant. He admitted that the time of presenting the complaint in the police station was not mentioned in Ex.62 complaint. He admitted that in Ex.29 a receipt given by the goldsmith, no time was mentioned. He stated that in the complaint at Ex.62 exact timing of when they went on night round and when they reached at Vegetable Market Police Chowki are not mentioned. He also stated that he did not mention time when the information received and when preliminary panchnama was drawn in Ex.62 complaint. He admitted that all the procedure of raid till sending muddamal to F.S.L. was performed by him. He stated that he could say from his memory that on muddamal bag two or three seals were impressed. He could not say how may seals in each sample were impressed. He denied that in his complaint he stated different methods of sealing the muddamal than mentioned in panchnama. He denied that after recording of the complaint, he got up panchnama thereafter. He denied that he fabricated the papers afterwards and, therefore, he did not mention time in investigation papers. In para-11, he had been asked about of Section 103 CR.A/566/2000 16/66 JUDGMENT of Code of Criminal Procedure. He further stated in this paragraph that he could not remember that after returning to Police Station, whether he presented any other documents along with F.I.R., panchnama and seizure memo. He stated that mudammal seal remains in custody of Writer Head. At the time of incident the seal was in his custody and was kept in police vehicle in one box. After seal was used, it was kept in jeep. In para-12, he stated that wireless message at Ex.64 was sent by one P.S.I. Jadeja and he sent wireless message as per his instruction. He admitted that in Ex.65 a letter addressed to the Deputy Superintendent of Police by him about the progress of the investigation, he did not mention time. He stated that he could not say that when Judicial Magistrate (First Class) received the copy of F.I.R. He produced that copy on record at Ex.75. In para-13, he stated that panchas were called by Rupendrasinh, as per his instruction. He did not instruct Rupendrasinh that what type of panchas were to be called. He did not instruct Rupendrasinh that panchas were to be called for from nearby area. He did not record any statements of person residing near the place of incident. He recorded the statement of Jarinaben, the mother of the appellant. He could not say whether Jarinaben has shown as witness in the charge-sheet. In para-14 he is contradicted about the statement he made in chief that informant halted the jeep, he exited from CR.A/566/2000 17/66 JUDGMENT the jeep and informant gave him information. He admitted that he did not state those sentences in the complaint, but stated that informant gave information. He admitted that in the complaint the names of the panchas were not mentioned. In the complaint he also did not state that police personnel searched panchas vice-a-versa also. The panchas were also searched the police and nothing was found. In para-14, a contradiction in the evidence of Rupendrasinh was proved. In para-15, he denied that in investigating papers he kept blank of time with mala fide intention. He denied that he did not prepare panchnama at the scene of offence. He denied the fact that the appellant was not arrested at the place of incident with muddamal. He denied the fact that the appellant was resident of Jetpur and doing business in clothes. He denied that the appellant, in fact, had been to Dhoraji for his business and after watching movie was returning to Jetpur, and at that time, he was apprehended near bus-stand. He denied that nothing was found from the possession of the appellant and he had been falsely involved in this offence. He denied the fact that the amount which was recovered from the person of the appellant was amount of his business. This is all the evidence of P.W. 13 – Vijaybhai Jivaji Medant. CR.A/566/2000 18/66 JUDGMENT 13. Likewise, other witnesses of the raiding party P.W.7, P.W.8 and P.W.10 are also extensively cross-examined. Nothing could be brought about by the defence in cross-examination of these four witnesses to raise doubt and disbelieve their version. 14. P.W.9 - Ramjibhai Khanabhai stated in his deposition that on 17.06.1999 he was on duty at Dhoraji City Police Station, as Crime Writer Police Constable. At that time A.S.I. Vikramsinh Govubha Zala was in-charge as P.S.O. in Police Station. The Prohibition C.R. No.5056/1999 was registered and muddamal of that crime registered, in two cloth bags as marked as sample A-1 and A-2 was handed over to him to keep in safe custody in crime branch in lock and key. On 17.06.1999 at 16.00 hours, he entrusted A-1 sample of muddamal to police constable Dhanjibhai Unjabhai for onward transmission to F.S.L. Junagadh. He stated that he entrusted such muddamal A-1 to police constable Dhanjibhai Unjabhai in the same condition he received. On 17.06.1999 at 21.30 hours, Dhanjibhai Unjabhai entrusted muddamal again to him to keep in safe custody because he could not reach F.S.L. Junagadh. Again on 18.06.1999 at 9.16 hours, he entrusted muddamal A-1 to constable Dhanjibhai Unjabhai for taking muddamal through L.C.B. Rajkot to CR.A/566/2000 19/66 JUDGMENT F.S.L.. The muddamal was entrusted second time to Dhanjibhai Unjabhai in same condition. He produced entries in crime branch register at Ex.50 which denotes entrusting the muddamal to Dhanjibhai Unjabhai on 17.06.1999 and 18.06.1999. The witness is extensively cross-examined and he admitted that in entries No.22 to 29 the numbers of the entries were modified. In Entry No.30, after erasing the same, 31 number was written. On the same way buckle number of the constable there were erosions. He further stated in his cross-examination that on that day he was in-charge crime writer as crime writer head constable was on leave. He stated that seal of the Police Station and all other necessary material for sealing remains in custody of writer of P.I. On that day, writer of P.I. Ganeshbhai Kanjibhai, who was having seal etc. was on leave. No register in this respect is kept. He stated that whatever muddamal produced before the Police Station was registered in the register and muddamal pavati was prepared and that register was known as muddamal pavati register. He denied that in muddamal register got up entries have been entered in respect of sending muddamal to F.S.L. as well as of receiving back the said muddamal from F.S.L. This is all he stated in his cross-examination. CR.A/566/2000 20/66 JUDGMENT Learned APP then re-examined this witness and in his re- examination he stated that entries No.22 to 30 in muddamal register which were modified and such modification was done by him. He explained that he committed a mistake in giving serial numbers and, therefore, he corrected serial numbers by such modification. There was no cross-examination by defence on this re-examination of the witness 15. P.W.10 – Dhanjibhai Unjabhai Solanki, Ex.51 stated in his deposition that on