CR.A/8519/1999 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 85 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== STATE OF GUJARAT Versus PUROHIT PADAMSINH CHUNILAL ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant NOTICE SERVED for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 05/08/2008 CR.A/8519/1999 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) State of Gujarat has filed the present appeal against the judgement and order dated 13.11.1998 passed by the Additional sessions Judge, Junagadh in Sessions Case No.59 of 1997 acquitting the present respondent- original accused of charges under Sections 17 and 20(b) of the Narcotic Drugs and Psychotropic Substance Act. Today, our attention was drawn by Mr. Maulik Nanavati, learned APP that the respondent in the present case was arrested on 17.2.2000 pursuant to an order of this Court dated 24.7.1999 issuing non-bailable warrant against the accused while admitting the appeal. Since then, the respondent though acquitted has been languishing in jail. The office note also mentions that the accused has not engaged an advocate despite service of notice. Therefore, we have taken up the present appeal for hearing. The prosecution case as per the evidence of Nirmalsinh K Gohil, Circle Police Inspector, Junagadh Police Station, Exhibit 14 is to the effect that on 23.1.1997 he received a secret information that the respondent was selling contraband article opium from his house situated at the premises of Krishna Mill situated on Manavadar Station Road. On the basis of this tip, he along with the raiding party proceeded to the alleged place of offence and arrested the respondent along with opium. Thereafter, the said muddamal was seized and sealed in the presence of two panchas and Panchnama at Exhibit 7 was drawn. Thereafter, the respondent came to be arrested and a complaint at Exhibit 16 was filed against him for the alleged offence punishable under Sections 17 and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. CR.A/8519/1999 3/4 JUDGMENT We find that the recovery of opium was made from the house of the accused. Therefore, the reason given by the learned trial Judge that Section 50 is applicable is incorrect. However, we find from the judgment and record is that the opium which is alleged to have been recovered when being sent to the FSL has not been kept in a condition in which the law enjoins upon the authority to keep the same. No police personnel has been produced to establish that the contraband was recovered and sealed and kept only in that condition and only in that condition it was sent to FSL. This is a serious infirmity and though the samples were received in the Forensic Science Laboratory in a sealed condition, the possibility of them being tampered prior to their being sent to the laboratory cannot be ruled out. It is true that provisions of Sections 52 and 57 of the Act are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused and seizure of the article. Here there is no evidence o record to establish that the muddamal parcel was sealed by the officer-in-charge of the police station as required under Section 55 of the Act. Further there is no evidence to show that the Investigating Officer followed the procedure prescribed in Section 57 of the Act of making full report of all particulars of arrest and seizure to his immediate superior officer. Also, the evidence on record is sketchy and not conclusive on the point that the sample sent to the Chemical Analyser was the same that was seized from the house of the accused. Under the circumstances, we are of the considered opinion that CR.A/8519/1999 4/4 JUDGMENT the prosecution has miserably failed to prove that the muddamal allegedly recovered from the house of the respondents was properly seized and stored prior to it being sent to the laboratory for examination and the possibility of it being tampered with or even replaced cannot be ruled out. Therefore, though not completely agreeing with the reasoning given by the Trial Court for acquitting the respondents, we find that on the basis of the aforesaid evidence and faulty investigation by the prosecution, it would not be safe to convict the respondents for a serious offence of possessing and selling ganja. In the result, the appeal filed by the State is therefore dismissed and the acquittal of the respondents is confirmed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd