CR.A/524/2000 1/46 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 524 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA 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 ? ========================================================= SAIYED SALIM SAIYED HUSSAIN SAIYED - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MHM SHAIKH for Appellant(s) : 1, MR KT DAVE ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 18/12/2006 CR.A/524/2000 2/46 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. The appellant ('the accused' for short) was tried by the learned Additional City Sessions Judge, Court No.13, City Sessions Court, Ahmedabad in Sessions Case No. 255 of 1999 for commission of the offences punishable under Section 8 (c ) read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short), arraigned on the charge of having found with contraband article 'charas' weighing 257 grams, without pass or permit, when he was intercepted and apprehended near Lal Mills Cross Roads, adjacent to SRP Point, Gomtipur, on the basis of the prior information received by P.W.1, Ravindrakumar Kashiram Bhatt, Senior Police Inspector. At the end of the trial, the accused was found guilty of the offences with which he was charged and as his complicity is proved, the learned Judge of the trial Court convicted him vide judgment and order dated 5.5.2000 for commission of the offences CR.A/524/2000 3/46 JUDGMENT punishable under sections 8 (c ) read with Sections 21 and 29 of the NDPS Act and sentenced him to suffer R.I. for ten years and fine of Rs.1 lakh i.d., R.I. for further period of one year. Aggrieved by the aforesaid judgment and order of conviction and sentence, the accused has filed this appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short). 2. Briefly stated, the prosecution case as disclosed from the FIR and unfolded during trial, is as under: 2.1. P.W.1, R.K. Bhatt, Senior P.I. Gomtipur Police Station, received a secret information from informant to the effect that a person, put on black trouser and black shirt with white stripes, would be coming from Kalandari Masjid, going through the Lal Mills Cross Roads and going towards Usha Talkies on a Scooter bearing Registration No. GRM 4286 with narcotic substance in the dickey of the scooter. CR.A/524/2000 4/46 JUDGMENT 2.2. On receipt of the said information, P.W.1, R.K. Bhatt, went to Gomtipur Police Station and recorded the said secret information in the station diary and also sent copies thereof to his official superiors i.e., ACP “H” Division and DCP, Zone V. Thereafter he requisitioned service of two persons to act as panchas. After procuring presence of two panchas, he conveyed the said secret information to the two panchas and also to the members of the raiding party. Accordingly, he prepared the preliminary panchnama to the said effect. 2.3. After preparing the preliminary panchnama, he along with the panchas and the members of the raiding party went to Lal Mills Cross Road and kept vigil on the road. It is also the case of the prosecution that at about 19.00 hours, a person corresponding to the description given in the secret information, came on the scooter No. GRM 4286. P.W.1, R.K. Bhatt, intercepted and apprehended him and informed him that, as per the secret information received by CR.A/524/2000 5/46 JUDGMENT him, he had information about narcotic substance being carried by a person corresponding to the description of the accused. On inquiring his name, the accused informed that his name is Saiyed Salim Saiyed Hussain. The accused was given a written memo in compliance of the provisions of Section 50 of the NDPS Act. P.W.1, R.K. Bhatt also informed the accused that as per the secret information he wants to search him and if the accused prefers that he should be searched in presence of a gazetted officer or a magistrate, he would make arrangement for the same but the accused did not opt for that and informed P.W.1, R.K. Bhatt that he may be searched by him. Thereupon, P.W.1, R.K. Bhatt searched the person of the accused and on opening the dickey of the scooter, a plastic bag was found and therein he found two semi circular lumpy substance. P.W.1, R.K. Bhatt, thereafter called G.D. Sharma, an Officer of FSL, who, on preliminary examination, opined that the substance recovered was 'charas'. Thereafter, Sakal Rajaram, a gold-smith, was called for CR.A/524/2000 6/46 JUDGMENT weighing the contraband article and on weighing it, it was found that the contraband article recovered from the accused was 257 grams with the plastic bag and without the plastic bag it was weighing 252 grams. Thereafter G.D. Sharma, Officer of the FSL, took 50 grams of charas as sample from both the pieces and put it in a cover. Thereafter the plastic bags were heat sealed and wrapped in paper and tied with string. The sample was given Mark A-1 and and the muddamal narcotic substance was marked as mark A. It is also the case of the prosecution that search memo and arrest memo were prepared on the spot and served to the accused. Thereafter on the basis of the complaint given by P.W.1, R.K. Bhatt, PSO of Gomtipur Police Station registered the offences against the accused and report under section 157 of the Code was made by P.W.1. Thereafter further investigation was handed over to P.W.8, S.R. Yadav, Police Sub Inspector, by the PSO. 2.4. After taking over the investigation, CR.A/524/2000 7/46 JUDGMENT P.W.8, S.R. Yadav, recorded the statements of the members of the raiding party and panch witnesses and concerned PSO of Gomtipur Police Station, muddamal mark A-1 was forwarded to FSL, Ahmedabad for analysis and thereafter on receipt of the report from FSL certifying that the said muddamal was 'charas' and as sufficient incriminating evidence was found against the accused, he was charge sheeted for commission of the offences punishable under section 8 (c ) read with sections 21 and 29 of the NDPS Act in the City Sessions Court, Ahmedabad. 2.5. The learned Additional City Sessions Judge, Court No.13, Ahmedabad to whom the case was made over for trial, framed charge against the accused for commission of the offences punishable under section 8 (c ), read with Sections 21 and 29 of NDPS Act which was read over and explained to the accused. As the accused pleaded not guilty to the charge and claimed to be tried, he was put to trial and tried in Sessions Case No. 255 of 1999. CR.A/524/2000 8/46 JUDGMENT 2.6. To prove the culpability of the accused, the prosecution has examined and relied upon the oral testimony of 8 witnesses, the details of which are given in para 5 of the impugned judgment and order. They are as under: P.W. No Name and status of witness Ex.No . Page No 1 Ravindrakumar Kashiram Bhatt, the complainant 10 39-60 2 Jayantkumar Ganpatrao Marathi- Panch witness 23 61-70 3 Gnaneshwar Ramdas Gajjar – Panch witness 24 71-78 4 Mahendrasinh Balusinh 25 79-90 5 Dipsinh Virsinh 26 91-96 6 Somaji Rajaniji 28 97- 100 7 Ganpatsinh Balusinh 29 101- 106 8 Shivnathsing Rajdevsing Yadav, I.O. 30 107- 114 2.7. To prove the case against the accused, the prosecution also produced and relied upon a number of documents, the details of which are mentioned in paragraph 6 of the impugned judgment and order. CR.A/524/2000 9/46 JUDGMENT 2.8. After recording of the evidence of the prosecution witnesses was over, the learned Judge of the trial Court explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution in toto. He, however, did not lead any evidence nor did he examine any witness in support of his defence. However, he filed a separate written statement which is on record at page 149, wherein, inter alia, it has been stated by him that the muddamal charas was not recovered from him. Though it was alleged against him that he was intercepted on 9.9.1999 while riding his scooter, in fact he was not riding the scooter nor he is the owner of the said scooter. He has also stated that just with a view to save the original owner, P.W.1, R.K. Bhatt, has wrongly entrapped him after calling him from his residence on 9.9.1999 at about 6 O' clock in the CR.A/524/2000 10/46 JUDGMENT evening. P.W.1, R.K. Bhatt has also recovered Rs.3,000/- which was the salary given by his employer as well as Rs.210/- from him. The police has also recovered his driving licence after calling for it from his residence. It is also stated by him that he has never smoked nor has he seen the contraband article charas prior to the alleged incidence. He is having his wife, children and parents to look after. In past no criminal complaint was lodged against him. The sum and substance of the further statement filed by the accused is that he is innocent and has been wrongly entrapped by P.W.1, R.K. Bhatt in a false case. 2.9. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the learned Judge of the trial court held that the prosecution has established, beyond reasonable doubt, that on 9.9.1999 near Lal Mills Cross Road, near SRP Point, Gomtipur the accused was found in possession of the contraband article charas weighing 257 grams. Therefore, the CR.A/524/2000 11/46 JUDGMENT complicity of the accused is established by the prosecution beyond reasonable doubt. He, therefore, held the accused guilty for commission of the said offences with which he was charged and convicted him for commission of the offences under Section 8 (c ) read with sections 21 and 29 of the NDPS Act and sentenced him to suffer R.I. for ten years and fine of Rs.1 lakh and i.d., R.I. for further period of one year, which has given rise to instant appeal at the instance of the accused. 3. Mr. MHM Shaikh, learned advocate for the accused, has contended that the prosecution has examined the members of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non-compliance of the provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. P.W. 2, Jayantkumar Ganpatrao Marathi, Ex.23 and P.W.3, Gnaneshwar Ramdas Gajjar, Ex.24 are panch witnesses and they are independent witnesses, CR.A/524/2000 12/46 JUDGMENT but they have not supported the case of the prosecution case, and, therefore, the prosecution has failed to establish the charge levelled against the accused. It is also contended by him that the learned Judge of the trial court has misdirected himself in relying upon the oral testimony of P.W.1, R.K. Bhatt and P.W.4, Mahendrasinh Balusinh in respect of the alleged secret information, search of the person of the accused and the scooter, seizure of muddamal and the arrest of the accused at the scene of the offence. He also tried to demonstrate by reading the evidence of those two witnesses as to why their evidence cannot be relied upon. It is also emphasized by him that non-examination of G.D. Sharma, an officer of the FSL who was allegedly called upon at the scene of offense for preliminary examination of the muddamal and Sakal Rajaram, who allegedly measured the weight of the muddamal at the scene of offence, creates serious doubt about the veracity and trustworthiness of evidence of P.W.1, RK Bhatt and P.W.4, Mahendrasinh Balusinh CR.A/524/2000 13/46 JUDGMENT in respect of the alleged search and seizure of the muddamal at the scene of the offence. Mr. Shaikh further contended that the learned Judge of the trial court ought to have drawn adverse inference in favour of the accused and should not have relied upon the oral testimony of aforesaid two witnesses to secure conviction. It is also pointed out by him that the prosecution has failed to establish the fact that the muddamal contraband article reached the FSL intact and there was possibility of tampering with the muddamal on its journey from the time of seizure and filing of the complaint till it reached to the FSL. According to Mr. Shaikh, there is non- compliance of the provisions of section 52 and 55 of the NDPS Act. It is also criticized by him that the learned Judge of the trial court has erred in not appreciating the submissions made by the defence that the scooter bearing Registration No. GRM 4286 was not belonging to the accused. The owner of the said scooter was not examined to prove that the scooter was entrusted to the accused on the day of the incident. Moreover, the CR.A/524/2000 14/46 JUDGMENT investigating officer has not recovered any document with regard to the ownership of the scooter nor did he recover any document showing that the accused was in possession of the scooter. It is also contended by him that the accused has filed further written statement while recording his further statement under Section 313 of the Code wherein he has specifically raised defence about the fact that he was not the owner of the scooter. However, the learned Judge of the trial court has not appreciated the said defence in its true perspective. The learned Judge of the trial court has erred in holding that the muddamal charas weighing 257 grams was properly and legally handled and it was not tampered with till it reached at FSL Ahmedabad in sealed intact condition. By reading evidence in this regard Mr. Shaikh tried to convince this court that the muddamal was tampered with on the way from the police station to FSL Ahmedabad. 3.1. On the aforesaid premises, it is submitted by him that the prosecution has failed CR.A/524/2000 15/46 JUDGMENT to establish the charge levelled against the accused beyond reasonable doubt and therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offences with which he was charged. He, therefore, urged to allow the appeal. 4. In counter submission, Mr. KT Dave, learned APP has submitted that by voluminous evidence produced by the prosecution, the complicity of the accused is proved beyond reasonable doubt. The accused was found and caught red-handed with contraband article charas weighing 257 grams when he was intercepted by P.W.1, RK Bhatt, while he was riding the scooter No.GRM 4286 near Lal Mills Cross Road. He has also submitted that after following and observing the mandatory and statutory provisions contained under the NDPS Act, the contraband article was seized and sealed in presence of the members of the raiding party as well as panchas. It is also CR.A/524/2000 16/46 JUDGMENT submitted by him that the report of FSL in terms certified that the contraband article which was sent for analysis was charas. It is asserted by him that the prosecution has successfully established that the sample sent to FSL Ahmedabad was not tampered with during the course of its journey from the stage of seizure and filing of the complaint till reaching at FSL. It is also pointed out by him that panchas turning hostile is not unknown to criminal jurisprudence and that now-a-days it is on increase but that fact itself does not weaken the case of the prosecution as the case does not depend solely on the evidence of the panch witnesses. According to him, if the evidence of the members of the raiding party is of sterling quality then there is no reason to discard their evidence and on the basis of the evidence of the members of the raiding party, order of conviction can be passed. 4.1. On the aforesaid premises, according to Mr. Dave, learned APP, the prosecution has CR.A/524/2000 17/46 JUDGMENT established the case against the accused beyond reasonable doubt and, therefore, the learned Judge of the trial court has rightly recorded the order of conviction and sentence. He further submitted that the impugned judgment and order does not call for any interference of this court in this appeal and as the appeal lacks merit, it deserves to be dismissed. He, therefore, urged to dismiss the appeal. 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a compete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read an re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme court while dealing with NDPS cases, this court has examined the entire evidence on record for itself independently of the learned Judge of the trial CR.A/524/2000 18/46 JUDGMENT Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the learned Judge of the trial Court has rightly recorded the order of conviction and sentence. 6. At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder. 7. In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 SC 7. In para 1 of the said judgment, the Supreme Court has observed as CR.A/524/2000 19/46 JUDGMENT under: “The Statement of Objects and Reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith”. CR.A/524/2000 20/46 JUDGMENT 8. In view of the stringent penal provisions and harsh punishment provided thereunder and in view of the observations made by the Supreme Court in the above referred to judgment, we have to find out as to whether in instant case strict compliance of the safeguards provided under the statute have been observed by the Police Sub Inspector during the course of search of the accused and seizure of the muddamal, contraband article, charas. 9. In this connection, we shall first refer to the testimony of P.W.1, R.K. Bhatt, Ex.10, at pages 39-60 of the paper book. He has, inter alia, testified that he was serving as Senior P.I. Gomtipur Police Station, at the relevant time. On 9.9.1999, received a secret information from informant to the effect that a person, put on black trouser and black shirt with white stripes, would be coming from Kalandari Masjid, going through the Lal Mills Cross Roads and going CR.A/524/2000 21/46 JUDGMENT towards Usha Talkies on a Scooter bearing Registration No. GRM 4286 with narcotic substance in the dickey of the scooter. On receipt of the said information, he went to Gomtipur Police Station and recorded the said secret information in the station diary and he also sent copies thereof to his official superiors i.e., ACP “H” Division and DCP, Zone V. Thereafter he requisitioned service of two persons to act as panchas. After procuring presence of two panchas, he conveyed the said secret information to the two panchas and also to the members of the raiding party. Accordingly, he prepared the preliminary panchnama to the said effect. 9.1. After preparing the preliminary panchnama, he along with the panchas and the members of the raiding party went to Lal Mills Cross Road and kept vigil on the road. At about 19.00 hours, a person corresponding to the description given in the secret information, came on the scooter No. GRM 4286. He intercepted and apprehended the rider of the scooter and informed CR.A/524/2000 22/46 JUDGMENT him that, as per the secret information received by him, he had information about narcotic substance being carried by a person corresponding to the description of the accused. On inquiring his name, the accused informed that his name is Saiyed Salim Saiyed Hussain. The accused was given a written memo regarding compliance of the provisions of Section 50 of the NDPS Act. He also informed the accused that as per the secret information he wants to search him and if the accused prefers that he should be searched in presence of a gazetted officer or a magistrate, he would make arrangement for the same but the accused did not opt for that and informed him that he may be searched by him. Thereupon, he searched the person of the accused and on opening the dickey of the scooter, a plastic bag was found therein which was containing two semi circular lumpy substance. He thereafter called G.D. Sharma, an Officer of FSL, who on preliminary examination opined that the substance recovered was charas. Thereafter, Sakal Rajaram, a gold-smith was called for weighing the CR.A/524/2000 23/46 JUDGMENT contraband article and on weighing it, it was found that the contraband article recovered from the accused was 257 grams with the plastic bag and without the plastic bag it was weighing 252 grams. Thereafter G.D. Sharma, the Officer of the FSL took 50 grams of charas as sample from both the pieces and put the same in a cover. Thereafter the plastic bags were heat sealed and wrapped in paper and tied with string. The sample was given Mark A-1 and and the muddamal narcotic substance was marked as mark-A. He thereafter prepared search memo and arrest memo on the spot and served to the accused. Thereafter on the basis of the complaint given by him, PSO of Gomtipur Police Station registered the offences against the accused and he also made a report under section 157 of the Code. 9.2. In short, he has deposed as per the complaint lodged by him with Gomtipur Police station, which is on record at Ex.15, at pages 273-282 of the paper book. A perusal of the complaint at Ex.15, it is seen that oral CR.A/524/2000 24/46 JUDGMENT testimony of the complainant gets corroboration from the complaint and there is no contradiction between the complaint and the oral testimony of P.W.1, RK Bhatt. It is also mentioned in the complaint about the strict compliance of the provisions of Sections 42, 43, 50, 52 and 57 of the NDPS Act. It may be noted that P.W.1, RK Bhatt, was cross-examined by the learned advocate of the accused but he has successfully withstood the test of cross-examination and nothing substantial has been