CR.A/904/1999 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.904 of 1999 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 YASINKHAN KASAMKHAN PATHAN - Respondent ============================================================== Appearance : MR KT DAVE, APP for Appellant. MR SR DIVETIA for Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 25/11/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short) is directed against judgment dated July 27, 1999 rendered by the learned Special & Additional Sessions Judge, 2nd Court, Bharuch, in Special (N.D.P.S.) Case No.3 of 1998 by which the respondent is CR.A/904/1999 2/33 JUDGMENT acquitted of the offence punishable under Section 20(b) (i) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (“the Act” for short). 2. The facts emerging from the record of the case are as under: On November 6, 1997, Mr.K.D.Pandya was performing duties as Police Sub Inspector, PAK Cell (ISI- ATS Cell) & Narcotic Cell, Bharuch. On that day, when he was investigating a robbery case registered with Palej Police Station, he received an information from his informer that a person wearing variegated shirt and black jeans having height of 5' 6” and aged about 28 years, was to pass through Palej Cross Roads either in a truck or a bus towards Surat and was carrying ganja with him. On receipt of the information, PSI Mr.Pandya made necessary entry in station diary maintained at Palej Police Station. He made necessary report as required by Section 42(2) of the Act to Divisional Police Officer, Bharuch, and District Superintendent of Police, Bharuch. He directed Head Constable Balveersinh Mohan Bava to requisition services of two panch-witnesses. Accordingly, two persons, namely, Abdulbhai Ismailbhai Kadiya and Thakorebhai Ambalal Prajapati, were called. As Mr.Kadiya and Mr.Prajapati expressed their willingness to act as CR.A/904/1999 3/33 JUDGMENT panch-witnesses, the information received by Mr.Pandya was conveyed to them. The articles necessary for sealing the substance, if found, such as seal bearing inscription of 'P.S.I. N.D.P.S. Bharuch', scales & weights, plastic jar for placing muddamal, cloth-bag, wax, candle, needle, twine, etc. were secured. Thereafter, Mr.Pandya in the company of panch-witnesses and police officials proceeded towards the place indicated in the information, in a government vehicle. Mr.Pandya and others got down from the vehicle near Palej Cross Roads and maintained a watch. At about 12.00 noon, a person having a plastic-bag in his hand, who was answering the description given in the information, was spotted coming from Nareshwar Cross Roads to Palej Cross Roads. It may be mentioned that Mr.Pandya was also accompanied by his informer and on spotting the said person, the informer informed Mr.Pandya that the person, who was coming from Nareshwar Cross Roads to Palej Cross Roads, was the person who was carrying ganja with him. Thereupon, the said person was intercepted. On interrogation, he disclosed his name to be Yasinkhan Kasamkhan Pathan residing near Masjid, Village Moti Koral, Taluka:Karjan, District:Vadodara (i.e. the respondent). It is relevant to notice that as Mr.Pandya had forwarded report to his immediate official superior as required by Section 42(2) of the Act, Mr.M.B.Pethani, who was then Dy.S.P., SC-ST, had also come to the spot. PSI Mr.Pandya introduced himself and CR.A/904/1999 4/33 JUDGMENT Mr.Pethani to the respondent and also conveyed the information received by him. PSI Mr.Pandya then told the respondent that it was necessary to search his person. Before effecting search, it was informed to the respondent that Mr.M.B.Pethani, who was Dy.S.P., SC-ST, was himself a gazetted officer, but he could be searched before another gazetted officer or a magistrate if so desired by him. However, the offer made by PSI Mr.Pandya was declined by the respondent. Thereupon, the plastic- bag carried by the respondent was searched, which resulted into find of ganja. The substance found from the possession of the respondent was, prima facie, ascertained to be ganja by smelling. Though PSI Mr.Pandya had carried with himself scales, weights, etc., it was thought that the substance found from the possession of the respondent should be weighed by an independent person and that the whole procedure of seizure should be photographed. Therefore, he asked Jamadar Sardarsinh Motisinh to requisition services of a photographer. He also asked to call a person to weigh the substance found from the possession of the respondent. Accordingly, the Police Jamadar brought Firozekhan Ahmedkhan to weigh the substance whereas photographer Pravinbhai Somabhai was summoned to photograph the procedure, which was to be undertaken by PSI Mr.Pandya. The substance found from the possession of the respondent was weighed by Firozekhan and its weight was ascertained to be 6 Kilograms. The CR.A/904/1999 5/33 JUDGMENT plastic bag in which ganja was kept, was bearing writing “Krubhco Urea” in Hindi and English. PSI Mr.Pandya demanded pass or permit from the respondent authorising him to possess ganja, but none could be produced by the respondent. A sample of 50 Grams was drawn and placed in transparent plastic jar on which a slip bearing signatures of panch-witnesses and PSI was affixed. Thereafter, the jar was closed with its lid. After the jar was so closed, a white cloth was wrapped on it, which was stitched with needle and twine. On the plastic jar so wrapped, slips bearing signatures of panch-witnesses and PSI Mr.Pandya were affixed, on which seal bearing inscription of “P.S.I. N.D.P.S. Bharuch” was applied and given Mark “A-1”. PSI Mr.Pandya lodged his complaint at Palej Police Station. PSI Mr.Pandya thereafter produced his complaint panchnama, muddamal, accused, etc. before the PSO of Palej Police Station, i.e. Usmanbhai Gani Husain. PSO Mr.Usmanbhai, registered the offence against the respondent punishable under the Act and kept muddamal in his safe custody. He handed over complaint lodged by PSI Mr.Pandya to him for further investigation. PSI Mr.Pandya recorded statements of those persons, who were found to be conversant with the facts of the case. The muddamal was dispatched to Forensic Science Laboratory for analysis through Police Constable Dolatbhai Chhaganbhai. The report of the analysis indicated that the substance analysed was ganja within CR.A/904/1999 6/33 JUDGMENT the meaning of the Act. On completion of the investigation, the respondent was chargesheeted in the Court of learned Special Judge, Bharuch, for commission of offence punishable under Section 20(b)(i) of the Act on the basis of which, Special (NDPS) Case No.3 of 1998 was registered. 3. The learned Special & Additional Sessions Judge, 2nd Court, Bharuch, framed necessary charge against the respondent at Exh.3. 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 Firojkhan Ahmedkhan as P.W.-1 at Exh.6; (2) photographer Pravinbhai Somabhai as P.W.-2 at Exh.7; (3) panch Abdulbhai Ismailbhai as P.W.-3 at Exh.11; (4) panch Thakorebhai Ambalal Prajapati as P.W.-4 at Exh.15; (5) Unarmed Police Constable Dolatbhai Chhaganbhai as P.W.-5 at Exh.16; (6) Police Constable Jamiyatbhai Thakorebhai as P.W.-6 at Exh.22; (7) Head Constable Usmanbhai Gani Husain as P.W.-7 at Exh.24; and, (8) PSI Mr.Kaushikbhai Dinkarbhai Pandya as P.W.-8 at Exh.28, to prove its case against the respondent. The prosecution also produced documentary evidence such as; panchnama of seizure of plastic bag carried by the respondent and seizure of 6 Kilograms of ganja therefrom at Exh.12; letter by PSI, Bharuch, to PSI, Palej Police Station, to hand over CR.A/904/1999 7/33 JUDGMENT muddamal to Unarmed Police Constable Dolatbhai so that the same can be dispatched to F.S.L. at Exh.17; letter by PSI Bharuch to Director of F.S.L. to accept muddamal from Unarmed Police Constable Dolatbhai at Exh.18; letter by PSI, Bharuch, to PSI, Palej Police Station, to keep the muddamal in safe custody as it could not be delivered to F.S.L. by Police Constable Dolatbhai at Exh.19; another letter to PSI, Bharuch, to PSO, Palej Police Station, to hand over muddamal to Police Constable Dolatbhai for sending the same to F.S.L. at Exh.20; entry indicating that the ganja was found from the possession of the respondent and that the investigation of the case was handed over to PSI Mr.Pandya at Exh.21; forwarding letter by PSI Mr.Pandya, Narcotic & PAK Cell, to PSI, Palej Police Station, with which muddamal, panchnama, etc. were handed over at Exh.26; entry indicating that the information received by PSI Mr.Pandya was reduced into writing as required by Section 42(2) of the Act at Exh.29; report forwarded by PSI Mr.Pandya to his immediate official superior as required by Section 42(2) of the Act at Exh.30; consent letter signed by the respondent indicating that he willingly accepted to be searched in presence of Mr.M.B.Pethani, Dy.S.P., at the spot at Exh.31; resolution prepared by PSI Mr.Pandya before effecting search of bag carried by the respondent at Exh.32; complaint lodged by PSI Mr.Pandya at Exh.36; intimation given by PSI Mr.Pandya to Sub Divisional CR.A/904/1999 8/33 JUDGMENT Magistrate regarding seizure of ganja from the respondent as required by Section 58 of the Code at Exh.37; production report forwarded to the learned Chief Judicial Magistrate at Exh.38; report of the F.S.L. at Exh.40; order constituting PAK Cell at Exh.46; resolution indicating that the provisions of Section 50 of the Act were complied with and confession made by the respondent admitting his guilt, etc. in support of its case against the respondent. 4. After recording of evidence of 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 under Section 313 of the Code. In his further statement, the respondent claimed that a false case was foisted upon him. According to the respondent, he was picked up from his house, but no offending substance was found from his possession and that after threatening him, a false case was lodged against him. However, no defence evidence was adduced by him. 5. On appreciation of evidence adduced by the prosecution, the learned Judge noticed that PSI Mr.Pandya, who had lodged the complaint, had investigated his own complaint, which was a suspicious circumstance CR.A/904/1999 9/33 JUDGMENT and was a factor against the prosecution. The learned Judge also noticed the claim made by PSI Mr.Pandya that before proceeding to the spot indicated in the information, he had carried with him scales and weights and held that, therefore, his claim that Firozekhan was summoned to weigh the substance found from the possession of the respondent, was highly doubtful. The learned Judge held that after seizure of offending substance from the respondent, PSI Mr.Pandya had failed to report the seizure to magistrate having jurisdiction over the area where the offending substance was seized as required by Section 102(3) of the Code, which was fatal to the prosecution. The learned Judge deduced that Section 55 of the Act was not strictly complied with whereas the claim of PSI Mr.Pandya that the respondent was found in possession of ganja, which was seized, was not corroborated by independent evidence of panch-witnesses, who had turned hostile and was, therefore, liable to be disbelieved. In view of abovereferredto conclusions, the learned Judge has acquitted the respondent by judgment dated July 27, 1999 giving rise to instant appeal. 6. Mr.K.T.Dave, learned counsel of the appellant, contended that the case of the prosecution stands fully and satisfactorily established by reliable testimony of PSI Mr.Pandya and, therefore, the learned Judge was not CR.A/904/1999 10/33 JUDGMENT justified in acquitting the respondent. According to the learned APP, PSI Mr.Pandya had complied with mandatory provisions of the Act such as Sections 42(1), 42(2) and 50, before effecting search of plastic bag carried by the respondent and seizing the offending substance from the possession of the respondent and, therefore, the respondent could not have been acquitted by the learned Special Judge. What was asserted by the learned APP for the State was that while considering that the provisions of Section 102(3) of the Code were complied with, the learned Judge has completely ignored the contents of production report produced on record of the case at Exh.38 and, therefore, the impugned judgment deserves to be set aside. The learned APP stressed that merely because panch-witnesses have chosen to turn hostile, the prosecution case should not have been doubted by the learned Special Judge when it was proved through reliable testimony of police officials that the respondent was found in possession of offending substance and, therefore, acquittal of the respondent should be set aside. It was argued that the provisions of Section 55 of the Act are not applicable to the facts of the case and, therefore, the learned Judge was not justified in recording a finding that there was partial compliance of Section 55 of the Act. According to the learned counsel of the State Government, the respondent could not probabilise his defence of alibi pleaded by him in his CR.A/904/1999 11/33 JUDGMENT further statement and, therefore, the prosecution case should have been accepted, which was satisfactorily proved by PSI Mr.Pandya. The learned APP for the State asserted that the learned Special Judge has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be accepted. 7. It may be mentioned that instant appeal was placed for admission hearing before the Division Bench comprising M.S.Parikh & H.H.Mehta, JJ. on February 1, 2000 and after hearing the learned Additional Public Prosecutor for the State, the Division Bench passed following order: “Mr.N.D.Gohil, learned APP, appears for the State. Leave granted. Appeal admitted. Bailable warrant in the sum of Rs.10,000=00 to issue. It will be open to the State to move appropriate application for imposition of any further conditions of bail, if found necessary.” The record of the case shows that the respondent is duly served. However, he has not appeared either in person or through a lawyer. Having regard to the facts of the case, this Court found that it was necessary to appoint a Senior Advocate practising in this Court, who can render competent legal assistance to the respondent. Accordingly, Mr.S.R.Divetia, learned Senior Advocate, was appointed to render legal assistance to the respondent. CR.A/904/1999 12/33 JUDGMENT 8. Mr.S.R.Divetia, learned counsel of the respondent, contended that the evidence of PSI Mr.Pandya indicates that at the time when seizure was effected, about 100 persons had collected, but the prosecution has not examined any of them and as so-called independent panch-witnesses have turned hostile, well-founded acquittal of the respondent should be confirmed by this Court. It was argued that the conduct of PSI Mr.Pandya in carrying scales and weights with him, but not using the same for the purpose of weighing the substance found from the possession of the respondent, is strange and, therefore, the learned Judge of the trial Court, who had advantage of observing demeanour of the witnesses, was justified in doubting the prosecution case that the respondent was found in possession of ganja. The learned counsel of the respondent pleaded that report under Section 102(3) of the Code would lend credence to the case of the prosecution that offending substance was found from the possession of the respondent and, therefore, non-forwarding of the report under said Section is rightly treated as having vitiating effect on the prosecution case. In the alternative, the learned counsel emphasised that production report produced by the prosecution at Exh.38 should not be treated as report under Section 102(3) of the Code and, therefore, the CR.A/904/1999 13/33 JUDGMENT acquittal of the respondent should not be disturbed by the Court. It was argued that cogent and convincing reasons have been assigned by the learned Special Judge for acquitting the respondent and as the learned Additional Public Prosecutor for the State has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed by the Court. 9. This Court has heard Mr.K.T.Dave, learned Additional Public Prosecutor for the State, and Mr.S.R.Divetia, learned Senior Advocate of the respondent, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record with reference to broad and reasonable probabilities of the case. 10. As noticed earlier, one of the grounds assigned by the learned Judge of the trial Court for doubting the prosecution is that PSI Mr.Pandya, who lodged complaint, himself investigated his complaint. So far as this point is concerned, the Court finds that PSI Mr.Pandya was appointed in Narcotic Cell and it was his duty to curb harmful activities amounting to commission of offences punishable under Act. He had received prior information, which was reduced into writing by him. He had also CR.A/904/1999 14/33 JUDGMENT forwarded his report to his immediate official superior as required by Section 42(2) of the Act. It is relevant to notice that in view of the report forwarded by him, Dy.S.P. Mr.Pethani was althroughout present during the course of search of plastic bag carried by the respondent and seizure of ganja from the possession of the respondent. It is also relevant to notice that PSI Mr.Pandya was also accompanied by his informer, who had given the information that the respondent was to pass via Palej Cross Roads with ganja. Under the circumstances, the investigation of the complaint, which was undertaken by PSI Mr.Pandya pursuant to direction given by the PSO of Police Station, should not have been doubted by the learned Judge of the trial Court. The investigation of the complaint by a Police Officer can be treated as having adverse effect on the prosecution case provided something is brought on record of the case to indicate that the Police Officer was bearing grudge against the accused or was out to settle personal scores with the accused. The record of this case shows that PSI Mr.Pandya was searchingly cross-examined at length by the defence. However, it is worth noticing that even remotely, it could not be suggested by the defence to the Police Officer that either he was on inimical terms with the respondent or that he was out to settle personal scores CR.A/904/1999 15/33 JUDGMENT with the respondent. Therefore, the prosecution case could not have been doubted on the ground that the complaint lodged by PSI Mr.Pandya was investigated by himself. 11. It is true that on the facts and in the circumstances of the case appearing in (1) Bhagwan Singh vs. State of Rajsthan, (1976) 1 SCC 15, and (2) Megha Singh vs. State of Haryana, (1996) 11 SCC 709, investigation by the same officer, who had lodged First Information Report, was condemned. However, in State represented by Inspector of Police, Vigilance & Anti- Corruption, Tiruchirapalli, T.N. vs. V.Jayapaul, (2004) 5 SCC 223, the Supreme Court has re-examined the issue and after referring to principles laid down in State of U.P. vs. Bhagwant Kishore, A.I.R. 1964 SC 221, it has held in paragraph 4 of the reported decision as under: “There is nothing in the provisions of the Criminal Procedure Code which precluded the appellant from taking up the investigation. The fact that said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code.” CR.A/904/1999 16/33 JUDGMENT Further, the Supreme Court has made following pertinent observations in paragraph 6 of the reported decision. “There is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased.” Meaningful reading of the abovequoted observations makes it very clear that whenever police officer proceeds to investigate after registering the FIR on his own, the investigation would not necessarily be unfair or biased. According to the Supreme Court, such investigation can only be assailed on the ground of bias or real likelihood of bias on the part of the Investigating Officer. The close scrutiny of the entire evidence on record makes it very clear that it was never suggested to PSI Mr.Pandya that there was bias against the respondent nor it could be established that CR.A/904/1999 17/33 JUDGMENT there was real likelihood of bias on the part of Mr.Pandya when he investigated his own complaint. In view of the principles laid down in State (supra), this Court is of the opinion that the finding recorded by the trial Court that the case of the prosecution is doubtful because the complaint lodged by PSI Mr.Pandya was investigated by himself, is liable to be set aside and is, accordingly, hereby set aside. 12. Another ground of acquittal, which has heavily weighed with the learned Judge of the trial Court, is that PSI Mr.Pandya committed breach of provisions of Section 102(3) of the Code. Section 102(3) of the Code provides that any police officer who seizes any property alleged or suspected to have been stolen, or which may be found under circumstances, which create suspicion of the commission of any offence, shall report the seizure to the Magistrate having jurisdiction over the area from where the property is seized. A bare reading of Section 102 of the Code makes it very clear that it will come into picture only if the police officer has seized the property which is alleged to have been stolen, or is found under the circumstance which creates suspicion of the commission of any offence. CR.A/904/1999 18/33 JUDGMENT In instant case, there was no question of finding the respondent with the property under the circumstances creating suspicion of the commission of any offence but, in fact, the respondent was found with contraband article namely, ganja, in his possession without pass or permit and was arrested in view of the provisions of the Act. Therefore, provisions of Section 102(3) of the Code would not apply to the facts of the case. Even otherwise, the record of the case shows that the seizure of offending substance was reported to the learned Judicial Magistrate, Bharuch, when the respondent was produced before him after arrest. This is evident from the contents of Exhibit 38. Exhibit 38 produced during the course of recording of testimony of PSI Mr.K.D.Pandya, reads as under: “To Hon'ble the Chief Judicial Magistrate, Chief Court, Bharuch. Report of Mr.K.D.Pandya, PSI, PAK & Narcotics Cell, Bharuch District, is as under: The accused of C.R.No.II-50/97 registered with Palej Police Station for commission of offences punishable under Sections 8(c) read with Section 20(b) of the N.D.P.S.Act, 1985, aged 29 Years, residing near Masjid, Village : Moti Koral, Taluka : Karjan, District : Vadodara, was CR.A/904/1999 19/33 JUDGMENT arrested on November 6, 1997 at 14.30 hours, and, is produced before Your Honour within the time prescribed and it is