IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 326 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE A.M.KAPADIA and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus SARDARJI CHELAJI THAKORE -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 326 of 1989 MR B.D.DESAI, APP for Appellant-State MR GM AMIN for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE A.M.KAPADIA and MR.JUSTICE H.H.MEHTA Date of decision: 03/03/2003 ORAL JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) The State of Gujarat, has, by filing this Criminal Appeal under Section 378 of the Criminal Procedure Code (for short 'Cr.P.C.'), read with Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'), challenged the correctness, legality, validity and propriety of the judgement dated February 24, 1989 rendered by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur at Ahmedabad, who presided over the Special Court constituted under Section 36 of the NDPS Act (who will be referred to as 'the learned Judge of the Trial Court') in Sessions Case No. 128 of 1988, whereby present respondents/accused came to be acquitted under Section 235 (1) of Cr.P.C. for the offences punishable under Sections 20(b)(ii), 27(1) and 29 of the NDPS Act and Sections 65(a) and 81 of the Bombay Prohibition Act, 1949 (for short 'the Prohibition Act'). 2. The facts leading to this present appeal in a nutshell are as follows: 2.1 The complainant Mr. K.T.Manjaria, 2nd Police Sub-Inspector of Dahegam Police Station, was on duty of night patrolling at 0:15 hours in company of Police Jamadar Ratilal Mahashankar, Police Jamadar Devjibhai Koyabhai and other Police personnel. During that duty of night patrolling, when they were near ST Bus stand, they received an information that one Sardarji Chelaji Thakore (accused No.1) was selling charas in his hut. There upon, the complainant called two independent persons, who can act as panch witnesses, and made them to understand about the information received, and proposed raid, which complainant wanted to carry out. There upon, complainant and his accompanying Police personnel and panch witnesses went to the house of accused No.1 and knocked the door of his house. They found that light of chimney was on in the house and all the three accused were sitting inside the house. 42 small plastic bags and one lump of of black coloured substance were lying infront of them. That substance in lump was smelt and it was found that it was charas. It was also found that the accused were filling in that substance in small plastic bags. The substance which was filled in the plastic bags was weighing about 5 tolas whereas the substance of lump was weighing about 100 gms. The complainant interrogated those three persons, who gave their respective names and addresses of their residences. As per the case of the prosecution, the present respondents were the same three persons who were found from the house, searched by the complainant. They were asked, as to whether, they had any pass or permit to possess that charas, but, they denied to have such pass or permit. As per the case of the prosecution, from the total quantity of 105 gms of charas, a sample of 10 gms of charas was taken in one empty match box, and thereafter, that match box was duly packed and sealed in presence of panch witnesses under a panchnama. As per the case of the prosecution, remaining substance of lump as well as 42 plastic bags were taken in one another big plastic bag, and that plastic bag was also packed and sealed as per the procedure prescribed. For all these formalities, which the complainant performed, a detailed panchnama was drawn in presence of accused and panch-witnesses. Thereafter, the complainant took with him the accused and muddamal articles seized, to Dahegam Police Station and lodged his complaint against the three accused at 2:15 AM (in the mid-night) on 20.6.1987. That complaint came to be registered as C.R.No. 146 of 1987. It is the case of the prosecution that the complainant sent the sample of charas with a forwarding letter to the Forensic Science Laboratory, Ahmedabad (for short FSL), for analysis by sending it through a messenger Police Constable. Some part of the investigation was carried out by the complainant, and thereafter, he handed over further investigation to Head Constable Ramjibhai. On receipt of report from FSL, Head Constable Ramjibhai filed a charge sheet in the Court of learned JMFC, Dahegam on 27.1.1988. That chargesheet came to be registered as Criminal Case No. 199 of 1988. Thereafter, the learned JMFC, Dahegam passed a committal order under Section 209 of Cr.P.C. in the said Criminal Case No. 199 of 1988, as a result of which, the said criminal case came to be committed to the Court of Sessions, Ahmedabad (Rural) at Mirzapur, Ahmedabad. On committal, that case came to be registered as Sessions Case No. 128 of 1988 in the Sessions Court, Ahmedabad (Rural) at Mirzapur, Ahmedabad. 2.2 On the basis of material on record, the learned Judge of the Trial Court, framed a charge (Exhibit-1) against all the accused on 29.12.1988. It be noted that, though, the complaint, the panchnama, and other articles disclosed that only 105 gms of charas was recovered and seized, the learned Judge of the Trial Court, through oversight, framed charge for quantity of 150 gms of charas. On recording the plea of the accused, accused pleaded not guilty of the charge, and they claimed to be tried. To prove the case against the accused, the prosecution examined following six witnesses: PW 1 Pitambarbhai Bhalabhai Exh.9 Sr. Scientific Assistant of FSL PW 2 Jatinbhai Rambhai Exh.17 Panch witness PW 3 Asvinbhai Jayantibhai Exh.19 2nd Panch witness PW 4 1st Grade Police Jamadar Ratilal Mahashankar Exh.20 (One of the members of the raiding party) PW 5 Police Sub-Inspector Devjibhai Koyabhai Patel Exh.21 (Another member of the raiding party) PW 6 Police Sub-Inspector Kalubhai Tappubhai Exh.22 (complainant as well as Investigating Officer) The prosecution also produced and proved certain documents in support of their case against accused, out of which, following documents are relied on by the prosecution: (i) Forwarding letter with which muddamal sample was sent to FSL Exh.10 (ii) Report on the botanical examination of the muddamal article issued by Sr. Scientific Assistant of FSL Exh.11 (iii) Two letters acknowledging the receipt of muddamal article addressed by the office of FSL to P.S.I., L.C.B., Jamnagar. Exhs.12 & 13 (iv) Panchnama Exh.18 (v) Complaint Exh.23 On evidence of prosecution witnesses was over, the circumstances appearing against the accused in evidence of prosecution witnesses were brought to the notice of and explained to the accused, and for whatever the replies were given by them, a further statement under Section 313 of Cr.P.C. of the three accused were recorded, separately. The defence of accused is a complete denial of the prosecution case. The case of all the accused is that, the house searched was not the ownership of accused No.1. All the accused submitted under Section 314 of Cr.P.C. their written arguments (Exhibit-24). Thereafter, the learned Judge of the Trial Court, after making scrutiny, analysis and appreciation of evidence, came to a conclusion that the prosecution has totally failed to prove the case against the accused, for which, charge was framed against them. On the basis of such conclusion, the learned Judge of the Trial Court, by rendering his judgement dated 24.2.1989 in aforesaid Sessions Case, acquitted all the accused of the offences with which they were charged. 3. Being aggrieved against, and dissatisfied with the said judgement of acquittal, the State Government has preferred this present appeal. 4. We have heard Shri B.D.Desai, learned APP for the appellant-State in detail at length. Shri Desai has taken us through the entire evidence on record, oral as well as documentary. He has argued that the learned Judge of the Trial Court has misread the evidence on the record and that, he has not properly appreciated the evidence in its correct perspective, and thereby, he has come to a wrong and faulty conclusion. He has further argued that looking to the evidence on record, the prosecution has ably proved the case against the accused, for which, charge was framed. He has submitted that evidence on record, is required to be reconsidered by this Court, and on the basis of reappreciation of evidence on record, the appeal deserves to be allowed, and the impugned judgement which is challenged in this appeal, requires to be quashed and set aside. He has lastly argued that, by allowing this appeal, accused be convicted and sentenced, in accordance with law. 5. We have carefully considered the submissions made by Shri B.D.Desai, learned APP. We have reanalysed and reappreciated the evidence on record. We have perused the impugned judgement, we have also perused the record and proceedings of the case which have been called for from the Trial Court. 6. The secret information was received by P.S.I. Kalubhai Tappubhai Manjaria, who was serving in Dahegam police station. He received this information near ST Bus stand, while he, in company of other Police personnel, was on duty of night patrolling. He received an information with regard to an offence, alleged to have been committed under the provisions of the NDPS ACt. As, he was P.S.I., he was an authorised officer under Section 42(1) of the NDPS Act. In view of Section 42(1) of the NDPS Act, he was duty bound to reduce that information into writing as soon as he received that information. In this case, admittedly, information was not reduced into writing by Kalubhai Tappubhai. It was argued by Shri B.D.Desai, learned APP that, information was received by Kalubhai Tappubhai, when he was on duty of night patrolling, and he received that information near ST Bus stand, and therefore, it was not possible for him to reduce that information into writing. We have perused the evidence of Kalubhai Tappubhai. He has admitted in his crossexamination that police station is situated at a distance, which can be covered within 5 minutes from the ST Bus stand. He has further admitted in his evidence that the place indicated in the information can be reached only by passing near police station. In these circumstances, Kalubhai Tappubhai could have waited for few minutes at police station, while going to the place indicated in the information. He could have made an entry with regard to information, which he had received, in the station diary or any other register kept for such informations. Atleast who could have made entry in his own diary for making note of day-to-day activities. He has not explained, as to why, this attempt was not made by him. Thus, Kalubhai Tappubhai, who had an opportunity to reduce the information into writing, failed to do so, and thereby, he has contravened the important mandatory provisions of Section 42(1) of the NDPS Act. As per the evidence of Devjibhai Koyabhai, who was one of the members of the raiding party, has deposed that he was in company of Kalubhai Tappubhai with other police personnel, and when they were about to reach crossing of three roads near ST Bus stand, at about 0:15 hours Shri K.T.Manjaria, i.e., complainant, received an information. The prosecution has placed reliance on a contemporary document of panchnama (Exhibit.18). It was drawn during the period in between 1:05 AM and 1:40 AM (midnight). So, it is an admitted fact that the raid was carried out after sun-set and before sun-rise. In view of proviso to Section 42(1) of the NDPS Act, Shri K.T.Manjaria was expected to record the grounds of his belief as well as grounds for carrying out the raid during night hours. In this case, no such writing is coming forth on record to show that Shri Manjaria had recorded the grounds for carrying out the raid during night hours. Thus, this is also a contravention of mandatory provisions contained under Section 42(1) of the NDPS Act. After carrying out the raid, and after recovery and seizure of the muddamal articles under panchnama, the complainant lodged his complaint in Dahegam Police Station. He has not deposed as to where and with whom he deposited muddamal articles, which he had seized. He has deposed that the sample which was seized by him, was sent to FSL through a messenger along with a forwarding letter dated 20.6.1987 (Exhibit.10). So, according to him, on that very day, he has sent that muddamal article through a messenger under a forwarding letter (Exhibit.10) to the FSL. The prosecution has not examined the messenger, who carried that sample to FSL. The prosecution has placed reliance on a letter (Exhibit.12) received from FSL. As per this letter, muddamal article along with forwarding letter was received by the officer of FSL on 4.7.1987. The prosecution has not explained as to how the muddamal article was dealt with during this long gap of period of 14 days. The prosecution ought to have led a convincing and satisfactory evidence to satisfy the Court that there was no remote chance of tempering with the muddamal article while it was in transit. The letter (Exhibit.12) only speaks about a sealed parcel. Nowhere it is certified by the officer of FSL that the seals were intact. As per the case of the prosecution, when muddamal article was seized, it was packed and sealed in such a way that; first, paper-slip containing signatures of panch witnesses was placed and it was tied with string, and thereafter, a seal was put on that paper-slip. If, really, it was so done, then the officer of the FSL must have received that paper-slip when he opened that parcel. There is no reference with regard to such paper-slip on parcel in letter (Exhibit.12). These all circumstances suggest that there is lack of evidence with regard to the custody of and handling of muddamal article, and it creates a doubt for it being tempered with, during the transit. 7. As per the case, as revealed in panchnama, contraband article weighing 105 gms was recovered from the house of the accused. The details of 105 gms is given with particulars that, substance found from 42 small plastic bags was weighing 5 tolas, and the substance of lump was weighing 100 gms. It is also the case of the prosecution that, sample of only 10 gms of charas was recovered and seized. It is not clear from evidence, as to from which part of the two quantities, that sample was taken, because, there were two quantities of charas, one of 5 tolas which was filled in 42 small plastic bags and another of 100 gms of substance of lump. Under the circumstances, no representative sample was sent to the FSL. In this connection, it would be profitable to refer to the reported decision of the Supreme Court in the case of GAUNTER EDWIN KIRCHER V. STATE OF GOA, AIR 1993 SC 1456, wherein, Hon'ble Supreme Court has held as under: "We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law." Applying the aforesaid legal principle laid down by the Hon'ble Supreme Court to the facts of this case, in the present case, Shri K.T.Manjaria had picked up only substance weighing 10 gms giving no details, as to from which part of the quantity, it was taken. 8. As per the case of the prosecution, after analysis of sample and sending of report by FSL, rest of the sample was sent back to P.S.I., who, sent it to FSL. It is the regular paractice that such sample sent back by FSL to police, is required to be sent to Court along with chargesheet, so that, during the trial, witnesses can identify the said sample as well as signatures on paper-slip affixed on such sample. In this case, though, sample was sent back by FSL to P.S.I., it is not produced in the case, till 8.2.1988. Prosecution could not produce the sample sent back by FSL to P.S.I. in the Court till the date on which evidence of complainant was recorded by the learned Judge of the Trial Court. Thus, it is not proved that the sample which was analysed in FSL was the same sample which was recovered and seized from the house. This infirmity adversely affect the credibility of the prosecution case. 9. In this case, prosecution examined two panch witnesses to prove the case against the accused. One is Jatinbhai Rambhai (Exhibit-17) and the other is Asvinbhai Jayantibhai (Exhibit.19). Jatinbhai Rambhai has deposed that on 28.6.1987, at about 12:30 AM he was standing at Dahegam ST Bus stand, and at that time, one Police Constable had come to him and asked to accompany him for raid. Thereafter, he, in company of police personnel, went to the place near 7, Garnala Testil. When they reached there, they saw that there was a crowd of 40-50 persons. Police was also present. Police had shown muddamal. Accused present in the Court were also present at that place. He has also deposed that when they reached there, papers of panchnama were prepared ready. Police informed them that raid for which he was informed of, was carried out, and for that, panchnama was prepared. He has admitted his signature on that panchnama. Looking to his deposition, he has nowhere stated that he was called at the house of accused No.1, and from that house, muddamal article was recovered and seized. Another panch witness Asvinbhai Jayantibhai has deposed similarly, as deposed by Jatinbhai Rambhai. Inspite of the fact that both panch witnesses did not support the case of the prosecution, they were not declared as hostile witnesses, meaning thereby, the prosecution relies on the evidence of these two panch witnesses. If we read the evidence of these two panch witnesses, their evidence is quite contrary to the evidence of complainant Shri K.T.Manjaria, and therefore, contents of panchnama cannot be read into evidence, when the panchas have not deposed in terms of panchnama. 10. As per the provisions of Section 57 of the NDPS Act, an officer, who carries out the raid, is required to make a full report of arrest and seizure to his immediate official superior within 48 hours, next after such arrest and seizure are made. In this case, Shri K.T.Manjaria has categorically admitted in his evidence that after occurrence of offence, he has not made any report to his immediate superior officer. We are conscious of the fact that provisions of Section 57 of the NDPS Act are not mandatory but they are directory. Merely because it is directory, it does not mean that provisions should be ignored completely. Here, in this case, provisions of Section 57 of the NDPS Act are completely ignored, and not observed by Shri K.T.Manjaria, and therefore, it reflects adversely on the credibility of Shri Manjaria. 11. As per the provisions of Section 52 of the NDPS Act, Shri K.T.Manjaria was expected to produce muddamal articles before the officer in-charge of the police station. There is no evidence as to who received that muddamal articles from Shri Manjaria. As per Section 52 of the NDPS Act, the officer in-charge of the nearest police station is expected to put his own seal on production of muddamal articles being made by the raiding officer. So, this provision of Section 52 of the NDPS Act is also not complied with. The prosecution has not examined the Writer Head Constable of police station who received that muddamal articles from the P.S.O., and deposited in muddamal room after making entry in the muddamal register. No entry from muddamal register kept and maintained by P.S.O. of police station is produced by the prosecution. 12. The prosecution has also not produced any evidence with regard to proof to prove the ownership of the house which was searched. The prosecution has come with a case that it was of ownership of accused No.1. It might have happened that the person who is an owner of the house was in possession of the muddamal articles, and the accused might have been invited by the owner in that house for any other purpose. 13. Looking to the aforesaid infirmities, the case against the accused is not proved by the prosecution beyond reasonable doubt. The learned Judge of the Trial Court has assigned cogent, convincing and plausible reasons for arriving at a just conclusion. There is no material on record to come to a different conclusion than what is arrived at by the learned Judge of the Trial Court. 14. We are conscious of the fact that the ambit and scope of Section 378 of Cr.P.C. is limited, and the powers of this Court, while dealing with the acquittal appeal, are very much circumscribed. In this type of acquittal appeals, the appellant has to satisfy this Court that decision arrived at by the Trial Court is palpably wrong or manifestly erroneous or demonstrably unsustainable. Shri B.D.Desai, learned APP is not in a position to dislodge the reasons arrived at by the learned Judge of the Trial Court to convince us to come to a different conclusion other than the conclusion arrived at by the learned Judge of the Trial Court. It is also a well settled principle of law that if two views are possible on the basis of evidence on record, the view which is favourable to the accused, must be accepted by the appellate Court. The above infirmities, which we have noticed are serious in nature. We are in full agreement with the reasons arrived at by the learned Judge of the Trial Court. On overall appreciation of evidence, this appeal deserves to be dismissed. 15. For the foregoing reasons, this appeal fails and accordingly it is dismissed. Bail bonds executed by the accused shall stand cancelled and sureties are discharged. Muddamal articles be disposed of as per the directions given by the learned Judge of the Trial Court in operative part of his judgement. (A.M.Kapadia,J) (H.H.Mehta,J) Jayanti*