CR.A/1169/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1169 of 2005 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA =============================================== 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 ? =============================================== RAJU MADHU CHOPDA. Versus STATE OF GUJARAT. =============================================== Appearance : NANAVATY ADVOCATES for the Appellant. Mr. UR BHATT, APP, for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 10/11/2008 ORAL JUDGMENT:- (Per : A. L. DAVE, J.) CR.A/1169/2005 2/6 JUDGMENT 1. The appellant along with one Pravinbhai Jairambhai Chopda came to be tried by Sessions Court, Surat, for offences punishable under Section 489-A, B and C read with Section 114 of the Indian Penal Code in Sessions case No.104 of 2004. The Sessions Court, by judgment and order dated 20th April, 2005, acquitted accused-Pravinbhai Jairambhai Chopda while convicting the appellant for the offences punishable under Sections 489-B and 489-C of I. P. C. and sentenced him to undergo rigorous imprisonment for ten years with a fine of Rs.10,000/- and rigorous imprisonment for seven years with a fine of Rs.10,000/- for the said offences, respectively, with appropriate default clauses. It is the said judgment and order in Sessions Case No.104 of 2004 of Sessions Court, Surat, which is under challenge in this appeal. 2. The facts of the case, in brief, are that police received a secret information that a gambling den is being run at Room No.205, Amar Building, Varachchha Road, by one Prakash Purshottam. The police, therefore, organized a raid after drawing preliminary Panchnama at the office. On raiding the premises, ten persons were found, one of whom was the appellant. They were found to be gambling. The police recovered an amount of Rs.20,870/-, which was the stake money. While searching the appellant, the police found 93 currency notes of denomination Rs.100/-, which were fake. The police, therefore, lodged two CR.A/1169/2005 3/6 JUDGMENT F.I.Rs., one for the offence of gambling and the other for the offence punishable under Section 489-A, B and C against the appellant and the acquitted accused on the ground that the said notes, which were found in possession of the appellant and which were meant for introducing to circulation, were supplied to the appellant by the acquitted accused. 2.1 On the basis of the charge sheet filed in the Court of Judicial Magistrate, First Class, Surat, the case was registered and then committed to the Court of Sessions and Sessions Case No.104 of 2004 came to be registered. 2.2 Charge was framed against the accused persons at Exhibit 22. The accused persons pleaded not guilty to the charge and claimed to be tried. 2.3 The Trial Court found that the prosecution could not successfully establish the charges levelled against the acquitted accused and, therefore, recorded his acquittal. The Sessions Court also found that the prosecution was successful in establishing charges for offences punishable under Sections 489-B and C against the appellant and recorded his conviction and awarded sentence, as stated hereinabove, and, hence, this appeal. 3. We have heard learned Advocate, Mr. Buch, for M/s CR.A/1169/2005 4/6 JUDGMENT Nanavaty Advocates for the appellant. According to him, the Trial Court has overlooked the fact that the prosecution failed to establish the seizure and once the seizure is not established, conviction for offence punishable under Sections 489-B or 489-C could not have been recorded. In support of his argument, he submitted that the witnesses to the Seizure Panchnama have not supported the prosecution case and the officer, who had drawn the Panchnama, has not been examined. He submitted that the seizure is, therefore, not properly established and the appeal, therefore, may be allowed. 4. We have also heard learned Additional Public Prosecutor, Mr. Bhatt. 5. We have examined the record and proceedings in the context of the submissions made by both the sides. 6. We find that the Panchnama of the raid and seizure is produced at Exhibit 29. It is a xerox copy of the original Panchnama. Apart from that aspect, we also notice that both the Panch Witnesses, Harshadbhai Maganbhai Patel and Bhagwanbhai Asharam Munde, who are examined at Exhibits 28 and 31, respectively, have not supported the prosecution case and have been declared hostile. A.C.P.-Ravat, before whom the Panchnama was drawn and who is said to have signed the said Panchnama, has CR.A/1169/2005 5/6 JUDGMENT not been examined as a witness. However, the Panchnama is sought to be proved through P.S.I.-Kedarnath Ramprasad Sharma (Exhibit 30). What emerges from his cross-examination is that no entry was made in the Station Diary or Special Diary to be maintained regarding his going for the raid. He has admitted that he did not make any such entry therein. He has also admitted that he has no documentary evidence to show that he had attended the raid. It is, therefore, risky to rely upon his evidence and accept seizure of the fake notes. 7. In this set of circumstances, we are of the view that the Trial Court committed an error in convicting the present appellant. The Panch Witnesses have not supported the prosecution case. The officer, before whom the Panchnama was drawn, has not been examined by the prosecution. The police officer, who claims to have attended the raid has no evidence to show that he did attend the raid and was present when the seizure was effected. There are no contemporaneous entry in the Police Station Dairy maintained by the P.S.I. to support his case that he had gone to attend the raid. Under the circumstances, the seizure cannot be said to have been proved beyond doubt. It is, therefore, risky to rely on such evidence and confirm conviction. In our opinion, the appeal merits acceptance and is, therefore, accepted. 8. In the result, the appeal is allowed. The judgment and CR.A/1169/2005 6/6 JUDGMENT order of conviction and sentence rendered by the Trial Court, which is impugned in the appeal, is hereby set aside. The appellant is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt