IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 974 of 1998 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- NASIR GANIBHAI SHAIKH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 974 of 1998 MR EE SAIYED for Petitioner No. 1-2 Mr K C Shah, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 29/01/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.P.BUCH) The appellants above namaed have preferred this appeal under sub-section (2) of section 374 of the Code of Criminal Procedure, 1973 (for short, 'the Code') challenging the judgment and conviction order dated 5.10.1998 recorded by the learned Addl.Sessions Judge, Court No.16, City Sessions Court, Ahmedabad in Sessions Case No.294/97 under which the learned Trial Judge convicted the present appellants for offence punishable under section 21 of the Narcotic Drugs Psychotropic Substance Acts, 1985.(for short, 'the said Act'). However, both the appellants were convicted for the offence punishable under section 29 read with section 21 of the said Act. 2. In fact four accused persons faced trial in the aforesaid case. However, accused no.3 and 4 in the said sessions case were ordered to be acquitted from all the offences for which they stood charged before the said court and, therefore, the original accused No.1 and 2 have filed this appeal as appellants no.1 and 2. 3. The facts of the case of the prosecution against the present appellants may be briefly stated as follows: That on 17.9.1997, Head Constable Abdulmajid Yasimkhan Pathan was present in his police station and he received an information that the first appellant was to come to a particular place and was to sell narcotic drug to appellant no.2. Accordingly he conveyed the said information to Police Inspector Mr T A Barot. It is the case of the prosecution that the said information was reduced into writing by PSI Mr Barot and copy thereof was sent to his superior officer, Assistant Commissioner of Police Mr N R Parmar. Thereafter, an entry was also made in the police station diary being entry no.6 of 1997. Panchas were invited and all of them proceeded to the place in respect of which the information was received. 4. Accordingly Head Constable Abdulmajid Yasimkhan Pathan, Police Inspector T A Barot, PSI Rajput and other police personnel went to the spot. They have waited for the appellants to come. Ultimately appellant No.1 arrived there and PW 6, Abdulmajid Yasimkhan Pathan - Exh.30, showed him to the other police officers. About half and hour thereafter, appellant no.2 also arrived there. There was some exchange of things between the two. The first appellant parted with something and handed over it to the second appellant which the second appellant put in his pocket. Same way, the second appellant also gave something to the first appellant and first appellant also put it in his pocket. At that point of time, the police officials went to the spot and they had given their introduction to the two appellants. 5. It was conveyed to them that if they wanted to be searched in presence of Magistrate of Gazetted Officer, then arrangement to that effect would be made. The information was conveyed in writing. At that time, the appellants showed their willingness to be searched in presence of police officers present there. Search was carried out and muddamal brown sugar was found from the persons of both the appellants. The said muddamal was seized, officers from FSL were invited on the spot. Mr Sharma from the FSL arrived at the spot and carried out preliminary analysis of the substance recovered from the appellants and it was found that the said substance was narcotic drug. Accordingly the said muddamal was seized. Panchanama was drawn and everything was sent to the police station with FIR. The FIR was accordingly registered and the muddamal and other things were received by the police station. Thereafter, further investigation was undertaken by PSI Rajput who carried out investigation and on completion of the investigation, charge sheet was filed. Case was registered as Sessions Case No.294 of 1997. 6. In the meantime, when appellants no.1 and 2 were arrested, it has come on record that original accused no.4 had given the muddamal to accused no.3 and accused no.3 had given it to the first appellant. Therefore, those two accused persons were also apprehended and charge sheeted, charge was also framed against them. But at the conclusion of the trial, the offence against them was not proved and, therefore, they came to be acquitted. It is required to be stated that against their acquittal, no acquittal appeal has been preferred by the State. Even at the stage of argument, learned APP in charge of the Sessions Case before the trial court was also not in a position to argue anything against those two accused persons. Therefore, there being no evidence against them except bare statements of co-accused, which naturally were not admissible in evidence at trial, the said two accused were naturally acquitted by the trial court. 7. On receipt of the charge sheet, police investigation papers were supplied to the appellants. Charge was prepared and framed against the present appellants at Exh.6. It was read over and explained to the appellants. They pleaded not guilty. Therefore, evidence was recorded. In the course of evidence, the prosecution has mainly examined the Head Constable Abdulmajid Yasimkhan Pathan, P.I. Mr T A Barot and PSI Mr Rajput. They were also present when the search in respect the muddamal in presence of the appellants was carried out. They have supported the case of the prosecution. At the end of the trial, the trial court recorded further statements of the appellants and other two accused persons under section 313 of the said Code. The appellants pleaded not guilty and they also claimed that no offence was committed by them. Arguments were advanced on behalf of the appellants. Written arguments were also placed on record. After hearing the learned Counsel for the parties, the trial court found that the offence against the present appellants was proved beyond reasonable doubt. Accordingly the trial court convicted the two appellants for offence under section 21 read with section 29 of the said Act. Learned trial Judge directed that the appellants to undergo R.I. for a period of 10 years and to pay a fine of Rupees One Lakh. In default of payment of fine, the appellants were required to undergo R.I. for a further period of six months for offence under section 21 of the said Act. 8. Feeling aggrieved by the said judgment and conviction order of the trial court, the appellants have preferred this appeal before this Court. It has been mainly contended here that the evidence of the prosecution was not satisfactory and the trial court has committed serious error in placing reliance upon the prosecution witness. Panch witness has not supported the case of the prosecution and that fact has not been properly appreciated by the trial court. Though the provisions made under sections 41,42,43,55 and 57 of the said Act have not been followed strictly, the trial court has omitted to consider the said aspect of the case. That on the whole, the judgment and conviction order of the trial court are illegal and erroneous and deserve to be set aside. The appellants have prayed that the present appeal be allowed and the judgment and conviction order recorded against the appellants by the trial court be set aside, the appellants may be acquitted of the offence said to have been committed by them and they be set at liberty forthwith. 9. On receiving the appeal, it was admitted and bail was refused and, therefore, the appellants are still in jail. When the appeal came up for final hearing, Mr E E Saiyed, learned Advocate has appeared on behalf of the appellants whereas Mr K C Shah, learned APP has appeared on behalf of the State. Both of them have taken us through the entire evidence on record including oral and documentary evidence. They have also taken us through the observations made by the learned Judge during the course of the judgment. 10. It would be relevant to observe that the first important witness examined by the prosecution are PW 6 Exh.30 Aabdulmajid Yasimkhan Pathan. He is the Head Constable attached to the Crime Branch at Gaekwad Haveli police station. According to him he received information from the informant that the first appellant was possessing and selling brown sugar illegally and on the date of the information, i.e. on 17.9.1997, the first appellant was to come near Honest Cycle Repairing Works near Idgah Circle Bridge with brown sugar in his possession and that he also received and that the second appellant was also to come there to get the said brown sugar from the first appellant. He conveyed the same to P.I. Mr Barot by 14.30 hours. It is further stated that the police officer invited two panchas and the information gathered by Aabdulmajid Yasimkhan Pathan was conveyed by Mr Barot to the panch witness and entry was made in the DCB police station during Mr Barot's superior officers was informed about the same. Thereafter, they went to the spot and waited for the appellants. That after half an hour the first appellant arrived there. He stood by the aforesaid Cycle stores and thereafter second appellant also arrived there after half an hour. After the first appellant gave something to the second appellant, the second appellant put it in his pocket, in turn the second appellant gave something to the first appellant which was placed by the first appellant in his pocket. At that point of time, the police officials rushed to the spot. Their introduction was given to the appellants. It was conveyed to them that as per the information, the appellants were in possession of narcotic drugs and therefore, they were required to be searched and hence, in case they wanted to be searched in presence of Magistrate or of a Gazetted Officer, then arrangement to that effect would be made. 11. Simultaneously a written intimation to that effect was also conveyed to them and their thump mark/signature were obtained on the said writing. The said writing has been produced on record by the prosecution. It has been mentioned in panchnama also. Their writings can be gathered at Exh.34. It bears thump mark of the first appellant and signature of the second appellant. Thereafter search was carried out in presence of panchas and brown sugar was seized from the appellants. One Rameshchandra Soni was invited on the spot for carrying out the weighment of the muddamal recovered from the appellants. The muddamal was weighed and entry was made in the panchnama. Simultaneously, Mr Sharma was invited from the FSL and he carried out preliminary examination of the muddamal article and found that it was brown sugar. Thereafter, the muddamal was seized. The appellants were apprehended and the muddamal was sent to the police station. This is the evidence of this witness. Similar evidence has been given by Mr Barot, P.I. PW 7 at Exh.31. Even Mr Rajput has also given similar evidence as he was also present when the search was carried out. 12. Learned Advocates for the parties have taken us through the evidence of the aforesaid witnesses. However, it is found that all the three witnesses have given consistent evidence. Their evidence is consistent with the prosecution case. and it is found consistent inter se also. On the receipt and recording of information, three witnesses have given consistent evidence to the effect that Aabdulmajid Yasimkhan Pathan Exh.30 conveyed the information to Mr Barot, P.I. which was reduced into writing. It is true that the police station entry No.6/97 has not been produced on record but it is also a fact that subsequently the information was given to the Asstt.Commissioner of Police in writing and the said writing has been proved by the prosecution. Moreover, police station diary Exh.19 also contains the said fact. Thus we find that Mr Barot has conveyed the said fact to the police station officer of DCB police station about the seizure of muddamal brown sugar and arrest of accused persons. Yadi Exh.22 which has been proved by Mr Barot during the course of his evidence. We also found Exh.32 a letter written by Mr Barot to the Asstt.Commissioner of Police, Crime Branch, Ahmedabad City wherein it has been mentioned that the above information was received by the police station and therefore, after making entry No.6/97 at 15.30 hours, the staff had proceeded for raiding the spot. It seems that the said information was received by the Asstt.Commissioner of Police and, therefore, when the search was being carried out, this police Officer had also reached the spot and that is the evidence of Mr Barot. Other two witnesses referred to above have also supported the evidence of Mr Barot on the point. It shows that the information was reduced into writing and it was conveyed in writing to the superior officer concerned i.e. Asstt.Commissioner of Police. This shows that the legal requirement of section 41 and 42 have been complied with by Mr Barot. Mr E E Saiyed, learned Advocate for the appellants strongly contended, while arguing, that the provisions of sections 41 and 42 have not been complied with. He has taken us through provisions of section 41 and 42 of the said Act. It would be relevant to refer to the said two provisions which are reproduced below for ready reference: "41. Power to issue warrant and authorisation (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the state Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for search, whether by day or by night of any building, conveyance or place in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from that any person has committed an offence punishable under Chapter IV or that any narcotic drug or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him by superior in rank to a peon, sepoy or constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) or the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Govt. if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset - (a) enter into and search any such building, conveyance or place (b) in case of resistance, break open any door and remove any obstacle to such entry (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under chapter IV relating to such drug or substance and (d) detain and search and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior." On a bare perusal of these provisions, it is very clear that sections 41 and 42 of the Act will come into play only when an offence is committed in a building, conveyance or enclosed place for which there are reasons to believe that the offence relating to narcotic and psychotropic substance is kept or concealed. On a bare reading of section 41, it becomes extremely clear that this provision will not apply when the seizure and search have taken place in a public place. 13. Mr Saiyed has also argued that even under section 42 of the Act, Police Inspector was required to follow certain procedure which has not been followed. It may be made clear that section 42 of the said Act will not apply when a search which has been carried out in a public place. In the present case, we find that the search of the present appellants was carried out in a public place and not in a building or closed premises. In that view of the matter, the Investigating Police Officer was not required to follow the procedure laid down under sections 41 and 42 of the said Act. 14. Learned Advocate for the appellants has also contended that the information received by Mr Barot was not reduced into writing and, therefore, the provisions of sections 41 and 42 have not been followed. As said above, three prosecution witnesses have consistently deposed that the information received by Mr Barot was reduced into writing. As said above, PW 6 - Aabdulmajid Yasimkhan Pathan Exh.30, PW 7 Mr Barot Exh.31, PW 8, Mr Rajput Exh.41, all have given consistent evidence that the information received was reduced into writing and Entry No.6/97 was made and the information was conveyed to immediate superior, i.e. Asstt.Commissioner of Police Mr Parmar. 15. During the course of cross examination, it has not been suggested that no such information was received and that it was not reduced into writing and such information was not conveyed to Mr N R Parmar. So on the one hand there is positive evidence of three witnesses on record. Their evidence is very convincing and consistent and there is no cross examination on the point about the receipt of information, registration of the information in writing and forwarding of the same to the immediate superior police officer. This would show that though the requirement of sections 41 and 42 are mandatory and though the said information was not required to be reduced into writing and though the said information was not required to be conveyed to the superior officer, since the search was carried out in a public place still the prosecution appears to have substantially complied with the provisions of sections 41 and 42 of the Act. 16. On this point we may also refer to a decision of this Court in the case of Abdul Salam Yusufbhai Shaikh v. State of Gujarat, , reported in 2003 (2) GLR 1643, wherein it has been expressly held by this Court that when a search has been carried out in a public place, there is no question of applicability of sections 41 and 42 of the said Act. 17. So looking to the facts and circumstances of the case the prosecution was not required to follow the procedure laid down in sections 41 and 42 of the said Act. In the aforesaid decision, there is a reference to the previous decision of this court and also the decision of the Supreme Court, according to which the procedure mentioned in section 41 and 42 does not apply to a search carried out in a public place. Despite this position, it seems from the record that the prosecution has complied with the provisions of sections 41 and 42. It is true that the defence has raised an issue that the information was not conveyed to the superior officer. At this stage, again at the cost of repetition it may be said that so far as the receipt of information and recording of information in writing is concerned the said fact has not been seriously challenged during the cross examination. The only challenge is that the information received and reduced into writing was not conveyed to the superior officer. 18. All the three witnesses referred to hereinabove have consistently deposed that the said information was conveyed to the immediate superior police officer i.e. the Assistant Commissioner of Police Mr Parmar. It is true that the original information received by Mr Parmar has not been brought on record. Then it is also the consistent evidence of all the three witnesses that Mr Parmar reached the spot when the search was going on. This means that the said officer had previously received the said information otherwise, if he had not received the said information, he would not have reached the spot at odd hours. 19. Above aspects further show that the above procedure was not required to be followed and yet the prosecution has proved that the said procedure of conveying the said information to the Superior Officer has also been followed and the said requirement can be said to have been complied with substantially. 19.1. Learned Advocate for the appellant has also taken us through the provisions made in section 52 of the said Act. For the purpose, he has drawn our attention to the provision of sub-section (3) of section 52 of the said Act. This provision shows that every