CR.A/875/2000 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 875 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 ? ========================================================= KANPURI @ KANJIBHAI GANESHPURIGOSWAMI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MC BAROT for Appellant MR RC KODEKAR APP for respondent – State of Gujarat, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 22/08/2007 CR.A/875/2000 2/27 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. In this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short), challenge is to the correctness of the judgment and order dated 7.7.2000 rendered in Sessions Case No.76 of 2000 by the learned Additional Sessions Judge, Court No.8, Ahmedabad City, by which the appellant ('the accused' for short) has been convicted for commission of the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) and sentenced to suffer RI for 11 years and fine of Rs.1 lakh i.d., R.I. for 3 months. 2. Since the facts of the case have been detailed in the judgment of the trial court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed for deciding this CR.A/875/2000 3/27 JUDGMENT appeal, as disclosed from the FIR and unfolded during trial, are as under: 2.1. P.W.3, Virambhai K. Ajarani, P.I. of Ellisbridge Police Station, while he was on duty on 21.11.1999, received a secret information at about 3.15 P.M., that two persons, viz., Kanpuri Kanjibhai Ganeshpuri Goswami of Vatva and Jayantigiri Ratigiri Goswami of Isanpur, were to come with opium and were going to pass through NID Circle. He recorded the said information in the police station diary and conveyed the said secret information to K.C. Patel, A.C.P. He thereafter requisitioned the services of two panchas through Police Constable Ibrahimmiya Mahmedmiya, who brought two panchas viz., Sanjaybhai Govindbhai Darji and Pyarali Sejaali Panjwani. P.W.3 informed the said two persons who came on his request to act as panchas about the secret information received by him and asked them as to whether they were willing to act as panchas.On their expressing willingness to act as CR.A/875/2000 4/27 JUDGMENT panchas, he drew the preliminary panchnama in this regard. 2.2. Thereafter P.W.3, along with the members of the raiding party and panchas, proceeded to NID Circle and kept a watch for the aforesaid two persons as detailed in the secret information. At about 4 O'clock in the evening, two persons were found coming from Jamalpur Circle towards NID Circle. P.W.3 along with the members of the raiding party with panchas approached them, encircled them and he inquired the person who was carrying a bag on his shoulder as to what was his name. He informed that his name was Kanpuri Kanjibhai Ganeshpuri Goswami and the person who was accompanying him informed that his name was Jayantigiri Ratigiri. P.W.3 informed those persons about the secret information received by him and in that regard he wanted to search them. He also informed them that if they wanted to be searched in presence of a gazetted officer or a Magistrate, arrangement could be made for CR.A/875/2000 5/27 JUDGMENT searching them in their presence or if they do not insist that they should be searched in presence of a gazetted officer or a Magistrate, he will search them. The said two persons did not raise any objection for being searched by P.W.3 and did not insist that they should be searched in presence of a Gazetted officer or a Magistrate and, therefore, P.W.3 searched them. 2.3. During the course of search, from the bag carried by Kanpuri alias Kantibhai Ganeshpuri Goswami opium was found. Thereafter P.W.3 called for the assistance of a gold-smith for weighing the opium. On weighing the opium it was found that the opium carried by Kanpuri alias Kantibhai was weighing 835 grams. Thereafter all necessary formalities with regard to seizing and sealing the said contraband article opium after taking samples were completed and accordingly the second part of the panchnama was completed. 2.4. Both the accused were arrested. They were CR.A/875/2000 6/27 JUDGMENT also informed about their arrest. A complaint was registered in this regard. 2.5. During the course of investigation, statements of the witnesses were recorded, muddamal contraband article opium which was recovered from Kanpuri was sent to FSL for chemical anlaysis. On receipt of the report from the FSL certifying that the said contraband article sent for analysis was opium, both the persons were charge-sheeted in the City Sessions Court, Ahmedabad for commission of the offences punishable under Section 18 read with section 29 of the NDPS Act, where it was numbered as Sessions Case No.76 of 2000. 2.6. The learned Additional Sessions Judge to whom the case was made over for trial, framed charge against both the accused persons for commission of the offences punishable under Section 18 read with Section 29 of the NDPS Act which was read over and explained to them to CR.A/875/2000 7/27 JUDGMENT which they pleaded not guilty and claimed to be tried and thereupon they were put to trial by the learned Additional City Sessions Judge in Sessions Case No.76 of 2000. 2.7. To prove the culpability of the accused, the prosecution has examined and relied upon the oral testimonies of ten witnesses, the details of which are given in paragraph 2 of the judgment, which are as under: P.W. No. Name Ex.No. Page No. 1. Sanjaybhai G. Darji 09 41-54 2. Pyarali S. Panjwani 11 55-70 3. Virambhai K. Ajarani 12 71-88 4. Ibrahimmiya M. Saiyed 18 89-106 5. Babubhai D. Kharadi, Head Constable 20 107- 116 6. Mirzaram B. Bangoda 27 117- 122 7. Jitendra Chinubhai Shah 30 123- 126 8. Sharad Nimba Mali, P.I. 33 127- 142 9. Jayendrakumar C. Dantani 49 143- 146 10. Samantsinh P. Parmar 51 147- 150 CR.A/875/2000 8/27 JUDGMENT 2.8. To prove the case against the accused, the prosecution has produced a number of documents and relied upon the contents of the same, the details of which are mentioned in paragraph 3 of the judgment. 2.9. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused persons the circumstances appeared against them in the evidence of the prosecution witnesses and recorded their further statement as required under Section 313 of the Code. In their further statement, the accused persons denied the case against them and stated that they have been wrongly roped in a narcotic case falsely. They stated that they were not found with contraband article opium. However, they did not lead any evidence nor did they produce any witness in support of their defence. CR.A/875/2000 9/27 JUDGMENT Accused No.1, Kanpuri alias Kanjibhai, has in his further statement stated that he was doing transport business and since he was harassed by police constable Ibrahimbhai and he had kept grudge against him and, therefore, he has been wrongly entrapped in a narcotic case. Accused No.2 has also stated that he is innocent and he does not know accused No.1 nor was he in contact with him. He has also stated that he has been falsely entrapped in a narcotic case. 2.10. On appreciation, evaluation, analysis and scrutiny of the evidence produced by the prosecution, the trial court held that the prosecution has failed to prove the charge levelled against accused No.2-Jayantigiri Ratigiri Goswami as the prosecution could not prove abetment made by accused No.2 to accused No.1 for commission of the offence alleged against him, and, therefore, accused No.2 was given benefit of doubt and resultantly acquitted of the offence with which he was charged. CR.A/875/2000 10/27 JUDGMENT So far as accused No.1 is concerned, it was held by the trial court that the prosecution has successfully established the charge levelled against him. Accused No.1 was found with contraband article opium when he was intercepted and apprehended by the police officer. Therefore, according to the trial court, complicity of accused No.1 for commission of the offence alleged against him has been duly established and consequently he has been convicted for commission of the offence punishable under Section 18 of the NDPS Act and sentenced to suffer RI for 11 years and fine of Rs.1 lakh and, in default of payment of fine, RI for three months, which has given rise to instant appeal at the instance of the accused No.1, Kanpuri alias Kantibhai. 3. Mr. M.C. Barot, learned advocate of the accused, has assailed the impugned judgment and order of the trial court by contending that the prosecution has examined the members of the CR.A/875/2000 11/27 JUDGMENT 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 mandatory as well as statutory provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. It is also highlighted by him that the prosecution has not been able to successfully establish that the contraband article which was sent to FSL was not tampered with during the course of its journey from the stage of seizing and sealing till its reaching the FSL. It is also emphatically submitted by him that P.W.1, Sanjaybhai G. Darji, panch witness No.1, who is an independent witness, has not supported the prosecution case with regard to the recovery of opium, seizure and sealing of the same and, therefore, the contents of the panchnama are not proved and in that view of the matter, the prosecution has not been able to prove the culpability of the accused for commission of the offence punishable under Section 18 of the NDPS Act. On the aforesaid premises, it is contended by Mr. Barot CR.A/875/2000 12/27 JUDGMENT that the prosecution has not been able to establish the guilt of the accused and, therefore, the impugned judgment and order passed by the trial court deserves to be quashed and set aside by acquitting the accused. He, therefore, urged to allow the appeal. 3.1. Alternatively, it is submitted by him that if this Court confirms the judgment and order of conviction passed by the trial court, then a lenient view may be taken so far as sentence imposed on the accused is concerned. According to him, the minimum sentence for commission of offence under Section 18 of the NDPS Act is ten years but in instant case the trial court has imposed sentence of RI for 11 years and, therefore, the sentence may be suitably modified and reduced to the minimum sentence of ten years. 4. Per contra, Mr. RC Kodekar, learned APP for the respondent – State of Gujarat, has CR.A/875/2000 13/27 JUDGMENT submitted that by voluminous evidence produced by the prosecution, complicity of the accused is proved beyond reasonable doubt. The accused was caught with contraband article opium weighing 835 grams which was carried in a bag by the accused and in presence of the members of the raiding party as well as panchas, the contraband article opium was seized, samples were drawn and sealed as per the sealing procedure. The said muddamal was sent to FSL for chemical analysis and the report of the FSL certified that the muddamal article sent for analysis was opium. It is also highlighted by him that the prosecution has successfully proved that from the stage of seizure and sealing till the samples reached for analysis at FSL, the samples were in the safe custody of the police personnel and in this case the prosecution has examined police officers in whose safe custody the samples were kept from the stage of seizure, sealing and till they were delivered at FSL for chemical analysis. It is also pointed out by him that though P.W.1, CR.A/875/2000 14/27 JUDGMENT Sanjaybhai G. Darji, panch witness No.1 has not supported the prosecution case with regard to the recovery of the contraband article from the accused, P.W.2, Pyarali S. Panjwani, Panch witness No.2, has supported the prosecution case and, therefore, the contents of the panchnama are proved from the evidence of panch witness No.2, P.W.2. On the aforesaid premises, it is contended by him that the prosecution has established the case against the accused beyond reasonable doubt and, therefore, the trial court was justified in recording the order of conviction and sentence against the accused. He, therefore, contended that the appeal does not warrant interference of this court and it deserves to be dismissed as the same lacks merit. Therefore, he urged to dismiss the appeal. 4.1. So far as the alternative submission made by Mr. Barot for reduction of sentence is concerned, it is submitted by him that it is true that for commission of offence under Section 18 CR.A/875/2000 15/27 JUDGMENT of the NDPS Act minimum sentence prescribed is ten years which may extend to twenty years. In instant case, the trial court has imposed RI for 11 years and, according to him, looking to the quantity of contraband article opium which was seized from the accused, which was weighing 835 grams, no leniency can be shown towards the accused and the sentence imposed on him cannot be reduced. 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 and 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 CR.A/875/2000 16/27 JUDGMENT independently of the trial Court and considered the arguments advanced on behalf of the accused persons and infirmities pressed, scrupulously with a view to find out as to whether 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 CR.A/875/2000 17/27 JUDGMENT said judgment, the Supreme Court has observed as 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 CR.A/875/2000 18/27 JUDGMENT to be in tune therewith”. 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 personnel during the course of the raid and seizure of the muddamal, contraband article, opium. 9. In this connection, we shall first refer to the oral testimony of P.W.1, Sanjay G. Darji, Ex.9. He is panch No.1 and he has not supported the prosecution case and, therefore, he was declared hostile. 10. The prosecution has thereafter examined and relied upon the oral testimony of P.W.2, Pyarali S. Panjwani, Ex.11. He is panch No.2 of the CR.A/875/2000 19/27 JUDGMENT recovery panchnama of the contraband article from the accused. He has testified as per the contents of the panchnama and has supported the prosecution case. 11. The prosecution has thereafter examined and relied upon the oral testimony of P.W.3, Virambhai K. Ajarani, PSI, Ex.12, who has received the secret information and made necessary arrangement for trap. He has, inter alia, testified about the secret information received by him which was reduced into writing in the station diary and conveyance of the said secret information to KC Patel, ACP, who was his superior officer. Thereafter panchas were called and after ascertaining their willingness to act as panchas, preliminary panchnama was prepared and thereafter the trap was arranged and the accused were intercepted and apprehended in the trap and from accused No.1 contraband article opium was recovered in presence of panchas and the members of the raiding party and thereafter CR.A/875/2000 20/27 JUDGMENT the second part of the panchnama was drawn. He has also testified that he has complied with the statutory provisions contained under Section 50 of the NDPS Act by explaining to the accused with regard to their right to be searched in presence of a gazetted officer or a magistrate and since the accused did not insist that they should be searched in presence of a gazetted officer or a magistrate and expressed their willingness to be searched by P.W.3, he searched them in presence of the panchas and the members of raiding party. From the evidence of P.W.3, it is clear that he has strictly complied with and adhered to the provisions of Sections 42 and 50 of the NDPS Act. 12. The prosecution has thereafter examined and relied upon the oral testimony of (i) P.W.4, Ibrahimmiya M. Saiyed, Ex.18, (ii) P.W.5, Babubhai D. Kharadi, Ex.20 and (iii) P.W.6, Mirzaram B. Bangoda, Ex.27. They were members of the raiding party and their testimony is as per the oral testimony of P.W.3. P.W.6 has testified CR.A/875/2000 21/27 JUDGMENT as to how the muddamal was preserved by him and given inward number in the register and thereafter sent it to FSL for analysis. 13. The prosecution has thereafter examined and relied upon the oral testimony of P.W.7, Jitendra Chinubhai Shah, Ex.30, a gold smith, who has weighed the opium. 14. The prosecution has thereafter examined and relied upon the oral testimony of P.W.8, Sharad Nimba Mali, Ex.33. He was at the relevant time In-charge Senior P.I. and the secret information was received by P.W.3, Virambhai K. Ajarani, in the presence of this witness. This witness also joined P.W.3, Virambhai for laying trap. He alongwith P.W.3, Virambhai and other members of the raiding party made necessary arrangement for the trap and in his presence the contraband article opium was found from the accused. 15. The prosecution has thereafter examined and CR.A/875/2000 22/27 JUDGMENT relied upon the oral testimony of P.W.9, Jayendrakumar C. Dantani, Ex.49, who had taken the muddamal to FSL for giving it for chemical analysis. 16. The prosecution has lastly examined and relied upon the oral testimony of P.W.10, Samantsinh P Parmar, Ex.51, who was the investigating officer and who has filed charge- sheet against the accused. 17. All these witnesses were cross-examined at length and in great detail by the learned advocate of the accused, but nothing substantial could be brought out from their cross-examination which would impeach their credibility and of any help to the accused to show that he has been falsely implicated in the case. 18. A threadbare reappreciation of the evidence produced by the prosecution, according to this Court, there is no manner of doubt that CR.A/875/2000 23/27 JUDGMENT the secret information which was received by P.W.3, Virambhai K. Ajarani, was reduced into writing and was entered into the station diary and he has conveyed the said information to his official superior, K.C. Patel, ACP. Necessary formalities were completed and thereafter he arranged for trap and the accused fell in the trap with contraband article opium. It is also proved beyond doubt that he has complied with the provisions of Sections 42 and 50 of the NDPS Act. 19. So far as the journey of the muddamal from the stage of seizure and sealing till its reaching at the FSL, the same was with the safe custody of the police personnel and the evidence of the witnesses is consistent in this regard. From the report sent by the FSL after analysis of the sample it is clear that the sample sent for anlaysis was opium. 20. On overall view of the matter, we do not find CR.A/875/2000 24/27 JUDGMENT that any infirmity or illegality has been committed by the trial court in passing the impugned judgment and order of conviction as complicity of the accused for commission of the offence punishable under Section 18 of the NDPS Act has been duly proved. 21. We find ourselves in complete agreement with the finding, ultimate conclusion and resultant order of conviction passed by the trial court as, according to us, on the facts and in the circumstances of the case and on the basis of the evidence on record, no other conclusion could be reached except the one recorded by the trial court. Therefore, the order of conviction recorded by the trial court deserves to be maintained. 22. This takes us to examine the alternative plea raised by Mr. Manubhai Barot, learned advocate of the accused, with regard to the reduction of sentence. CR.A/875/2000 25/27 JUDGMENT 23. It is true that for commission of offence punishable under Section 18 of the NDPS Act, minimum sentence is 10 years which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. In instant case , the accused has been sentenced to suffer RI for 11 years. However, looking to the weight of the contraband article opium which was recovered from the accused, which was 835 grams, which is less than 1 Kg, according to us, as per the amended Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (9 of 2001) which has come into effect from 2.10.2001, opium weighing 835 grams which is lesser than the commercial quantity (i.e., 2.5 kgs.) was recovered from the accused, if minimum sentence of RI for ten years and fine of Rs.1 lakh is imposed, it would meet the ends of justice. Therefore, according to us, sentence imposed on the accused is required to be modified by allowing this appeal qua sentence only. CR.A/875/2000 26/27 JUDGMENT 24. For the foregoing reasons, the appeal succeeds in part and accordingly it is partly allowed qua sentence only. The impugned judgment and order of conviction passed against the accused is confirmed and maintained. However, while upholding the conviction of the accused under section 18 of the NDPS Act, the sentence imposed on the accused to undergo RI for 11 years and fine of Rs.1 lakh i.d., RI for 3 months is modified and instead of that the