CR.A/684/2001 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 684 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 ? ========================================= SHAKUR HUSSAIN MAHMAD HUSSAINMANSURI Versus STATE OF GUJARAT ========================================= Appearance : MS BHARTI H RANA for Appellant MR DIPEN A DESAI APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : /04/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/684/2001 2/20 JUDGMENT 1 Instant Appeal is preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973, against the judgment and order rendered by the Additional Sessions Judge, District Kheda at Nadiad, on 28th of May, 2001, in Special (NDPS) Case No. 8 of 1999, whereby the appellant being accused of said Special Case, came to be convicted by the Trial Court for the offences punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1 lac, in default, to undergo simple imprisonment of one year. 2 It is the prosecution case that Senior Police Inspector, Kheda Town Police Station, Mr. J.B. Barad, on 10th of July, 1999 was present at Kheda Town Police Station and received an information that one person was likely to come from Ratlam with contraband substance and was to reach at Kheda Cross Roads and from there he was to go to Dhandhuka. The information was also received by him that the said person had worn pant of coffee colour and shirt of pink colour. It was also received information by Mr. Barad that in the hand bag carrying by this person, there might be opium. He recorded this information in Kheda Town Police Station diary and informed to his superior officer. He called panchas and a person with scale to weigh any substances, which might be found from the said person. He also called Deputy Superintendent of Police and Circle Police Inspector of the area CR.A/684/2001 3/20 JUDGMENT and along with panchas and other persons reached at Kheda Cross Roads at about 9.25 to 9.45 a.m. The person, who was called with scale, was named as Govindbhai Bhaijibhai. This police party was on watch, and during that watch, at about 10.30 a.m., from towards Kheda Town Bus Stand, a person was noticed coming towards cross roads by the raiding party. The said person was accosted and in the presence of panchas his name was asked, which he stated to be Sakurhusain Mohamadhussain Mansuri (accused), resident of Ratlam. He was sounded about the purpose of raid. He was also informed whether he wanted to be searched in presence of any other Magistrate or any other Gazetted Officer and the accused refused to be searched by any other Magistrate or Gazetted Officer. Accused was carrying a leather hand bag of brown colour containing chain. While opening the main part of hand bag, it was found that, there were two small bags, swen by thread. When these small bags were opened, in plastic bags, one black substance was found and suspected to be opium. He was asked whether he had any permit for keeping this substance in possession, which he refused. Thereafter, the two bags were searched and one bag contained 5kgs 700 gms and second bag contained 8 kgs and 500 grams of opium. Form each of the bags, 100 grams of sample were extracted separately through panchnama and after sealing, that samples were seized. A panchnama was prepared in this respect in the presence of panchas. The samples extracted from the bags, for sending the CR.A/684/2001 4/20 JUDGMENT same to Forensic Science Laboratory, were packed in two envelopes and the envelopes were sealed by PSI, Kheda. Remaining muddamal was sealed in one cotton bag, which was also sealed, and in both the muddamal bags, slips containing the signature of panchas were placed. The accused was supplied in writing the reasons for his arrest, and superior officers were kept informed about the seizing of substances of opium from the accused. Thereafter, at Kheda Town Police Station, Mr. Barad recorded his complaint and undertook the investigation. The seizure memo was also prepared in this respect, and in the copy, the signature of the accused was obtained. Muddamal, according to procedure, was handed over to the Writer, Kasamkhan Ahmadkhan by Mr. Barad. Thereafter, Kabhaibhai Premabhai, Unarmed Police Constable recovered muddamal from Writer Kasamkhan Ahmadkhan, and had handed over to FSL Laboratory in sealed condition. There were two packets of muddamal. Forensic Science Laboratory reports indicated that the substance of muddamal was opium and after due investigation a charge sheet came to be filed against the present accused in the court of learned Judicial Magistrate, First Class, and thereafter was committed to the Special Court. The case was then made over to Additional Sessions Judge, Kheda at Nadiad and was registered as Special Case (NDPS) No. 8 of 1999. 3 The Trial Court framed charges against the accused CR.A/684/2001 5/20 JUDGMENT appellant, vide Exhibit-3 on 15th of February, 2000 for the breach of Section 17 of the NDPS Act for keeping in possession in all 11.5 Kgs opium without any pass and permit. Accused pleaded not guilty and, therefore, the accused was put to trial. 4 Prosecution thereafter examined as many as seven witnesses. PW-1 Exhibit-8 Jayendrakumar Bhailalbhai Patel was examined as panch of panchnama Exhibit-9, wherein opium was found and seized by police. He has fully supported the prosecution case. PW-2 Exhibit-14 Govindbhai Bhaijibhai, is examined by the prosecution to prove weight of the opium found from the possession of the accused. He was called by the police and he had weighed the opium found from the accused. He has supported the prosecution case. PW-3, Exhibit-16, Bhalchandra Baburav, is examined because he was accompanying Mr. Barad at the time of raid and was working as Additional Police Sub-Inspector in Kheda Town Police Station. PW-4 Exhibit – 30 Kabhabhai Premabhai is an Unarmed police constable of Kheda Town Police Station and he had carried the muddamal samples to Forensic Science Laboratory and had entrusted the said muddamal in sealed condition with the Laboratory. PW-5 Exhibit-32, Kasamkhan Ahmadkhan was working as Writer Head Constable at the relevant juncture. Police Sub-Inspector Mr. Barad had entrusted the muddamal of this case to this witness and he in turn had entrusted two envelopes to Police Constable Kabhaibhai Bhemabhai for CR.A/684/2001 6/20 JUDGMENT onward transmission to Forensic Science Laboratory. PW-6 Exhibit-35 Mohindarsing Jageram was working as Assistant Director, Forensic Science Laboratory, Ahmedabad. In his laboratory, two samples of opium were examined and he produced on record at Exhibits 38 and 39 reports of Laboratory, by which it is found that the substances confiscated from the accused was opium. PW-7 Exhibit -43 Jawansinh Bharatsinh Barad is complainant, who carried out the raid on receiving the information. He also submitted charge sheet after the investigation. In addition to this, the prosecution also produced on record documentary evidence like complaint at Exhibit-45, receipt of weighing the substances issued by Govindbhai Bhaijibhai at Exhibit-15, panchnama at Exhibit-9, forwarding letter of Forensic Science Laboratory at Exhibit -36, the receipt of the Forensic Science Laboratory at Exhibit -31, forwarding letter to Forensic Science Laboratory at Exhibit – 37, opinion of Forensic Science Laboratory at Exhibits 38 and 39, xerox copy of the muddamal register at Exhibit-33, xerox copy of station diary entry at Exhibit-44, memo of arrest of accused at Exhibit-47, seizure memo containing signature of the accused at Exhibit-44. 5 After the prosecution case being over, the learned Trial Judge, according to Section 313 of the Code of Criminal Procedure, put to the accused the incriminating circumstances from the evidence. The accused took the defence of denial, which was CR.A/684/2001 7/20 JUDGMENT recorded by the Trial Court. In explanation, the accused stated that at the relevant time he was at Dargah of Baba. He was not possessing any opium but he was taking tea in Canteen, the police arrested him from the said canteen and a false case was framed against him. 6. The learned Trial Judge thereafter heard in detail the prosecution as well as the defence and came to the above conclusion to convict the accused and to sentence him and, hence, this Appeal. 7. Learned Advocate for the appellant Ms. Bharti H. Rana vehemently submitted that the prosecution is unable to prove that opium was found from the possession of the accused. She submitted that there are contradictions in the evidence of witnesses, which may lead to believe that the incident in question has not been proved. Strengthening her legal submission, learned Counsel submitted that the accused is entitled to acquittal because there are breaches of mandatory provisions. It is submitted that according to Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 when an information received by the Officer was reduced to writing, it was mandatory for him to send the information within 72 hours to his immediate official superiors. It is submitted that this compliance could not be proved by the prosecution beyond doubt as none of the witnesses have stated CR.A/684/2001 8/20 JUDGMENT about this compliance. It is submitted that Section 57 and proviso thereof has been ignored by the Officers. No report within 48 hours next after arrest of the accused and the seizure was made by the Investigating Officer to his immediately official superior. It is submitted that Section 50 of the said Act is also breached. Our attention is drawn to the complaint filed by Mr. Barad, produced at Exhibit -45 wherein it is mentioned that two plastic bags containing 100 grams each of opium was put in separate envelopes and were sealed. However, when Forensic Science Laboratory opened these envelopes, no seals were found on two plastic bags, which is found from the deposition of PW-6 Mohindarsing Jageram, examined at Exhibit-35. On these grounds and for the breach of the mandatory provisions, according to learned Advocate, trial is vitiated and learned Trial Judge did not, however, consider these aspects of the case and erroneously convicted the appellant – accused. It is further submitted that it is the prosecution case that Sub-Divisional Police Officer and Circle Police Inspector were both present when the raid was carried out, according to learned Advocate, none of these officers could be examined by the prosecution and, therefore, adverse inference be drawn against the accused. Lastly and by way of alternative submission, it is submitted that this is the first offence of the accused and he is the main earning member of the family. It is submitted that having regard to the facts and circumstances of the matter, sentence awarded to the accused, be reduced to the extent already CR.A/684/2001 9/20 JUDGMENT undergone because he has already undergone more than 80% of the sentence awarded to him. It is ultimately, therefore, submitted that Appeal be allowed and the judgment of conviction and sentence impugned in this Appeal be set aside and accused be acquitted. 8. As against this, learned APP Mr. M.R. Mengdey, also vehemently submitted that from the evidence of Mr. Barad, from the evidence of PW-1 Jayendrakumar Bhailalbhai Patel; from the evidence of PW-2 Exhibit-14 Govindbhai Bhaijibhai and from the evidence of PW-3 Exhibit-16 Bhalchandra Baburav, it is amply proved that at the relevant juncture raid was carried out and about 11 Kgs of opium was found from the hand bag carried by the accused. It is submitted that Jayendrakumar Bhailalbhai Patel and Govindbhai Bhaijibhai are independent witnesses and they have fully supported the prosecution case. It is submitted that panchnama at Exhibit-9 is amply proved and the sealing and seizure procedure is established beyond doubt by the prosecution. It is also proved that Kabhaibhai Premabhai, Un-Armed Police Constable had recovered muddamal from the Writer Kasamkhan Ahmadkhan and had handed over the same to Forensic Science Laboratory, Ahmedabad, in sealed condition. It is submitted that, therefore, PW-6 Mohindarsing Jageram was examined and he supported the prosecution case that Forensic Science Laboratory received the muddamal in properly sealed conditions. It is CR.A/684/2001 10/20 JUDGMENT submitted that Exhibits 38 and 39 reports of analysis of Forensic Science Laboratory establishes beyond doubt that the substances found from the accused was opium. It is, therefore, submitted that there is no scope for the accused to submit that the incident has not been proved. It is submitted that there is no breach of any mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It is submitted that it has been established by independent evidence that superior officers were present at the time of raid and they were kept informed about the written information. The accused was made aware of his right to be searched in the presence of Magistrate or any other Gazetted Officer, but according to the evidence, he did not avail that option. There is no breach of Section 57 of the Act also, as according to the evidence of Mr. Barad, a report was made to his superior officer. It is submitted that going through the record and proceedings, the prosecution has established a case against the accused beyond reasonable doubt. There is no reason that the judgment and order impugned in this Appeal be interfered with as each of the contentions raised in this Appeal is extensively dealt with by the Trial Court and for the reasons, the Trial Court has reached to the right conclusion to convict the accused and to sentence him. It is urged that the Appeal in question, therefore, is required to be dismissed as being merit less. 9 We have undertaken complete and comprehensive CR.A/684/2001 11/20 JUDGMENT appreciation of all vital features of the case and the entire evidence on record has been carefully scrutinized with reference to the broad and reasonable probabilities of the case. We have dealt with and appreciated the contentions raised by both the sides in this Appeal. 10 Re-appreciating the evidence as a whole and going through the evidence, first, it will have to be decided whether incident, as proposed by the prosecution, has been proved or not. In this respect it is necessary to go through the evidence of PW-7 Jawansinh Bharatsinh Barad; PW-3 Bhalchandra Baburav; PW-2 Govindbhai Bhaijibhai and PW-1 Jayendrakumar Bhailalbhai Patel. When we scanned through the evidence of these witnesses, we find that, it is clearly established by the prosecution that on receiving the information by PW-7 Jawansinh Bharatsinh Barad, a raid was arranged and opium to the extent of 11.5 Kgs was found from the possession of the accused. PW-7 Jawansinh Bharatsinh Barad, examined at Exhibit -43, stated in his deposition that he received the information which he recorded in station diary and a copy which he produced at Exhibit-44. He also stated that by telephonically he appraised his superior about the information received. Not only that but two superior officers accompanied him in the raid. He called two panchas and a person to weigh the substances. As per information received, at Kheda Cross Roads a person came, he was accosted and was made aware CR.A/684/2001 12/20 JUDGMENT about his right to be searched in the presence of Magistrate. He was accused and he refused to be searched in the presence of any other Magistrate or Gazetted Officer. The substances found from the accused was turned to be opium and two samples of 100 grams each were extracted from that substances and were properly sealed in plastic bags, putting the same bags in envelopes. The remaining muddamal was also sealed with the seal of PSI, Kheda putting therein slips signed by panchas. A seizure memo was prepared and was given to the accused and the reasons for arrest of the accused were also given to the accused in writing. Thereafter, complaint came to be registered. Muddamal was handed over to Writer Constable and thereafter muddamal was sent to Forensic Science Laboratory through PW-4 Kabhaibhai Premabhai. PW-7 Jawansinh Bharatsinh is corroborated by other witness i.e. PW-3 Bhalchandra Baburav, who, in all respects, corroborated the evidence of PW-7 Jawansinh Bharatsinh Barad. Bhalchandra Baburav was serving as Additional Police Sub- Inspector at the relevant time and was accompanying in raid. Not only that, PW-2 Govindbhai Bhaijibhai Patel, who was called to weigh the substances with scale, has also supported the say of PW- 7 Jawansih Bharatsinh and Govindbhai Bhaijibhai is an independent witness. Further, PW-1 Jayendrakumar Bhailalbhai Patel, panch of seizure panchnama at Exhibit-9 also supported the say of PW-7. In support of these witnesses, there are documentary evidence like panchnama at Exhibit-9, complaint at Exhibit-45, receipt given by CR.A/684/2001 13/20 JUDGMENT PW-2 Govindbhai Bhaijibhai at Exhibit-15, which is proved; xerox copy of station diary is produced at Exhibit - 44, reasons in writing given to the accused is produced at Exhibit – 47 and seizure memo is produced at Exhibit-46. It could not be even imagined for a moment that all these documents were got up only to frame the accused in this case. PW-1 Jayendrakumar Bhailalbhai Patel, PW-2 Govindbhai Bhaijibhai and PW-7 Jawansinh Bharatsinh have been extensively cross-examined by the defence side. We do not find a single circumstance from the cross- examination of any of these witnesses to come to even a remote possibility that incident was not occurred. Only because PW-7 Jawansinh Bharatsinh is the person, who received the information, he is the complainant and he is also the Investigation Officer, would not itself vitiate the trial when in all respects the incident has been proved beyond doubt. We simply find the cross- examination in the periphery of the main incident. In none of the evidence of these witnesses, we found a single circumstance which goes to dislodge the prosecution case so as to discredit any of these witnesses. Thus, so far as the incident is concerned, there is no rhyme or reason to come to the conclusion that the incident has not been established by the prosecution because there is no reason to disbelieve these four witnesses, out of them, two are independent witnesses. There is no reason at all that why police would frame a case against the accused for the possession of 11Kgs 500 grams opium. Even PW-7 Jawansinh Bharatsinh, in CR.A/684/2001 14/20 JUDGMENT para-15 of his cross-examination, stated that, through wireless, after crime was registered, he informed his superior officers. It must not be forgotten that two superior officers i.e. Circle Police Inspector of Kheda Division and Divisional Superintendent of Police, both were accompanying PW-7 in the raid. In these circumstances, panchnama placed at Exhibit-9, is fully proved, which leads to an invariable conclusion that from the hand bag carried by the accused, 11 Kgs 500 grams of opium was recovered. 11 Probing further in the prosecution case, it becomes clear from the evidence of PW-5 Kasamkhan Ahmadkhan Pathan, Writer Head Constable of Kheda Town Police Station that muddamal bags, containing seal of PSI Kheda Town Police Station, were handed over to him and he had kept the same in safe custody. It is further proved through the evidence of PW-4 Kabhaibhai Premabhai that on 12th of July, 1999 itself PSI Barad had directed him to entrust the muddamal of this case i.e. two envelopes to Forensic Science Laboratory, Ahmedabad and, therefore, he himself in person had been to Forensic Science Laboratory, and handed over the said muddamal to the Laboratory. A documentary evidence at Exhibit-31, receipt from the Assistant Director, Narcotic Division of Forensic Science Laboratory, Ahmedabad, is produced, wherein it is mentioned that two envelopes duly in sealed condition were received by them. This witness is cross- examined by the defence, but nothing could be elicited from the CR.A/684/2001 15/20 JUDGMENT cross-examination which could dislodge the say of this witness. Likewise, PW-6 Mohindarsing Jageram, working as Assistant Director, Forensic Science Laboratory, Ahmedabad, stated in express terms that, in Kheda Town Police Station Crime Register No. 62 of 1999, muddamal containing in two envelopes, was received by him on 12th of July, 1999. Along with the parcels, forwarding letter was also there, which he produced at Exhibit – 36. He acknowledged the receipt at Exhibit-31. He narrated the procedure for the analysis. He also deposed that there were seals of Sub-Inspector, Kheda on the envelopes and seals were intact. He further stated that in each of the envelopes, there was a slip signed by the panchas on 10th of July, 1999. The substances was examined through due analysis and according to the witness, after examination, the substance was found opium. He produced on record the conclusions of analysis at Exhibits 37, 38 and 39, which includes the botanical test as well. This witness has also been cross-examined in detail by the prosecution. It could not be extracted from the witness that either the say of the witness as to receipt of the parcels or the say of the witness as to the analysis was dis-creditworthy. Thus, going through this evidence carefully and thoroughly, we are not in agreement with the learned Advocate for the applicant that the incident has not been established by the prosecution nor learned Advocate could draw our attention to such major contradiction in the evidence, as to disbelieve the prosecution case. CR.A/684/2001 16/20 JUDGMENT 12 When it is proved beyond doubt by the prosecution through overwhelming evidence about the possession of contraband article, necessary it is observed that how Section 54 of the NDPS Act would come into play. Once, it is established that the accused was found in possession of contraband article, presumption arises that the accused has committed the offence under this Act for possession of contraband. Accused may satisfactorily account of the said possession, but when we scanned the cross-examination of the witnesses and the further statement recorded by the Trial Court of the accused, we found that the only defence of the accused was of total denial and he further stated that he was taking tea in a canteen situated nearby one Dargah of Baba where the police had arrested him. Obviously, this explanation is quite insufficient to dislodge the presumption under Section 54 of the Act in view of very clear evidence recorded during the trial and properly appreciated by the Trial Court and thereafter re-appreciated by us. No such reason could be found from the defence side that why police and other independent witnesses would join hands to frame a false case of this serious nature against the accused. No such enmity could be shown by the accused or no such probability is arising from the circumstances of the case. Merely saying by the accused that he was arrested from somewhere, does not explain the presumption arises against the accused. It is not the only say of the witnesses, CR.A/684/2001 17/20 JUDGMENT but there is documentary evidence in support of the say of the witnesses, which could not be explained by the accused. We have no reason at all therefore to come to a conclusion that a false case was fabricated against the accused. In criminal trials, the court must determine while appreciating the evidence that what was the set up and the circumstances in which the crime was committed. We have also undertaken the exercise to ascertain the quality of the evidence, nature and temperament of the witnesses and the level of understanding and form of perception of independent witnesses and probability in ordinary course of nature about the occurrence of the incident. On receiving the information by Mr. Barad, raid was arranged and the witnesses, who participated in that raid, include the superior