CR.A/20/2002 1/43 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 20 of 2002 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 ? ========================================================= KALIKAPRASAD RAMSAHAY - Appellant(s) Versus STATE OF GUJARAT – Respondent(s) ========================================================= Appearance : MS BANNA S DUTTA appointed by Legal Aid Committee for Appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 31/01/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/20/2002 2/43 JUDGMENT 1. The appellant ('the accused' for short) was tried by the learned Special Judge, Surendranagar, in NDPS Case No.1 of 2001 for commission of the offences punishable under Section 8 (c ) read with Section 21 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 1 Kg. 710 grams, without pass or permit, when he was intercepted and apprehended at the Lane near “Shankar Timber Mart” near the house of Hirabhai Bharvad at Joravarnagar, Taluka Surendranagar, District Surendranagar, on the basis of the prior information received by P.W.6, Karshanbhai Jivanbhai Jadav, PSI. 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 trial court convicted him vide judgment and order dated 23.11.2001 for commission of the offences punishable under Section 8 (c ) read with Section 21 of the NDPS Act and sentenced him to suffer R.I. for ten CR.A/20/2002 3/43 JUDGMENT years and fine of Rs.1 lakh i.d., R.I. for further period of two years. 2. 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). 3. Briefly stated, the prosecution case as disclosed from the FIR and unfolded during trial, is as under: 3.1. P.W.6, K.J. Jadav, PSI, Surendranagar ADS Branch, received a secret information from an informant on 21.10.2000 to the effect that near the Lane of “Shankar Timber Mart” near the house of Hirabhai Bharvad, a man aged about 30-35 years, speaking Hindi Language belonging to UP and wearing Sky blue pant and shirt with a dark blue rexin bag containing charas was to come to sell it. He, therefore, recorded the said secret information in the register and also sent a copy thereof to his official superior. As his higher CR.A/20/2002 4/43 JUDGMENT officer ordered him to keep P.I. of LCB in the raid, he informed R.C. Rathod, P.I. of LCB with regard to the said information and also about the raid to be carried out. Since there was no register in the LCB Office for recording the said information, RC Rathod, PI prepared a report and registered the said report in the Joravarnagar Police Station. Thereafter Jayendrasinh, a head constable, was asked to procure the presence of two panchas as well as a gold smith with weighing machine for weighing muddamal which could be recovered in the raid. On arrival of the panchas as well as gold smith and the members of the raiding party, all of them were informed about the secret information received by P.W.6, KJ Jadav. Accordingly, he prepared the preliminary panchnama to the said effect. 3.2. After preparing the preliminary panchnama, he along with R.C. Rathod, PI, panchas, gold smith and the members of the raiding party, went to the place as per the description given in the secret information and CR.A/20/2002 5/43 JUDGMENT kept a vigil on the road. It is also the case of the prosecution that at about 4.30 P.M., a person corresponding to the description given in the secret information, came there who was intercepted and apprehended by him and R.C. Rathod and he was informed that as per the secret information received by them a person corresponding to the description of the accused was to come with contraband article charas and that was why he was apprehended. On inquiring his name, the accused informed that he is Kalikaprasad Ramsahay Kushvaha. P.W.10, RC Rathod informed the accused that he is a gazetted officer and he wants to search him and also informed him that if he is to be searched in presence of another gazetted officer or an executive magistrate, he would arrange for procuring their presence and the option was left to the accused but the accused did not opt for search to be carried out in presence of another gazetted officer or an executive magistrate and told that he may be searched by P.W.10, RC Rathod and, therefore, the accused was searched by CR.A/20/2002 6/43 JUDGMENT P.W.10, RC Rathod, PI in presence of the panchas, gold smith and members of the raiding party but nothing was found from the person of the accused. Thereafter the dark-blue rexin bag of the accused which was in the hands of the accused was opened and on opening the rexin bag, one plastic bag was recovered. Inside the plastic bag, another plastic bag was found and on opening that plastic bag, five bars of black coloured substance was found and on smelling the substance it was found to be charas. Thereafter the accused was asked to produce the pass/permit for carrying charas with him. The accused could not produce any pass or permit for carrying charas with him. Thereafter the charas was weighed in the weighing machine carried by P.W.5, R.J. Soni, the gold smith, and on weighing the charas, it was found to be 1 Kg. 710 grams. From these five bars P.W.10, R.C. Rathod and P.W.6, K.J. Jadav, took 100 grams for sample and thereafter two samples each of 50 grams were prepared and thereafter seizure, sealing and panchnama, etc., were completed and accordingly the second part of CR.A/20/2002 7/43 JUDGMENT the panchnama was also prepared. 3.3. A complaint for the aforesaid incident was filed at Joravarnagar police station by P.W.6, KJ Jadav where it was registered as CR No.II-67/2000, which is on record at Ex.21. On filing of the complaint, KJ Jadav handed over the muddamal and the accused to the PSO, Joravarnagar police station. 3.4. Thereafter further investigation was handed over to P.W.12 NJ Chudasma, PSI. As he proceeded on leave, the investigation was taken over by P.W.11, Shivrajkumar Merajbhai Dhandhal, PSI, Ex.31. He recorded the statements of the witnesses, recorded the statement of the accused, sent the muddamal to FSL for analysis. Thereafter, on returning of P.W.12, NJ Chudasma PSI, Ex.35, from leave, he, on receipt of the report from FSL certifying that the muddamal sent for analysis was charas and as sufficient incriminating evidence was found against the accused, filed charge-sheet against the accused CR.A/20/2002 8/43 JUDGMENT for commission of offences under Section 8 (c ) read with section 21 of the NDPS Act before the learned Chief Judicial Magistrate, Surendranagar. 3.5. As the offences under the NDPS Act are exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, Surendranagar committed the case to the Sessions Court, Surendranagar. 3.6. The learned Special Judge, Surendranagar before whom the trial was laid, framed charge against the accused for commission of the offences under Section 8 (c ) read with Section 21 of the NDPS Act. As the accused pleaded not guilty to the charge and claimed to be tried, he was put to trial in NDPS Case No.1 of 2001 by the learned Special Judge. 3.7. To prove the culpability of the accused, the prosecution has examined and relied upon the oral testimonies of 12 witnesses, the details of which are given in para 4 of the impugned CR.A/20/2002 9/43 JUDGMENT judgment and order. They are as under: P.W. No. Name Ex. No. Page No. 1 Shaileshkumar Kantilal Patel, Panch witness 7 61- 67 2 Ishwarbhai Mathurbhai Chauhan, Panch witness 10 91- 102 3 Pradhyumansinh Agarsinh Rana, Police Head Constable 11 103- 108 4 Dilipsinh Amirsinh, Police Head Constable 12 109- 114 5 Vinodbhai Jayantibhai Soni 13 115- 120 6 Karshanbhai Jivanbhai Jadav, PSI, complainant 15 123- 134 7 Vanrajsinh Chanubha Zala, Police Head Constable 22 169- 172 8 Shaktisinh Jagubha Jadeja, PSO 25 179- 180 9 Jayendrasinh Agarsinh Rana, ASI 26 181- 184 10 Raising Chandrasinh Rathod, PI 29 189- 200 11 Shivrajkumar Merajbhai Dhandhel, PSI 31 205- 206 12 Natvarsinh Jilubha Chudasma, PSI 35 221- 224 3.8. To prove the case against the accused, the prosecution has also produced a number of documents, details of which are mentioned in para CR.A/20/2002 10/43 JUDGMENT 5 of the impugned judgment and order. They are as under: Sr. No. Description Ex. No. Page No. 1 Panchnama with regard to seizing the muddamal from the accused 8 77- 86 2 Order under Section 42 of the NDPS Act 9 87- 90 3 Letter written to DSP Surendranagar by the PSI Jadav of Surendranagar ADS Branch 16 135- 136 4 Confidential letter bearing outward No.404/2000 dated 21.10.2000 written by PI of Surendranagar LCB Branch to Joravarnagar Police station. 17 137- 138 5 Cover of confidential letter bearing outward No.404/2000 18 139- 140 6 Letter intimating the arrest of the accused 19 141- 142 7 Copy of the receipt issued to the accused with regard to seizure of muddamal from him. 20 143- 144 8 Complaint 21 145- 166 9 Copy of the extract of Entry No.17/2000 from the station diary of Joravarnagar Police station. 23 173- 174 10 Letter written to the PSI of Joravarnagar Police station by PI of Surendranagar LCB for filing offence against the accused and to take further investigation 24 175- 178 11 Receipt issued by FSL, Ahmedabad 27 185- 186 CR.A/20/2002 11/43 JUDGMENT Sr. No. Description Ex. No. Page No. 12 Copy of the letter written to the DSP under Section 58 of the NDPS Act with regard to the successful raid. 30 201- 204 13 Report of FSL 32 207- 210 14 Analysis report of FSL 33 211- 212 15 Forwarding letter written to FSL for carrying out analysis 34 213- 220 3.9. After recording of the evidence of the prosecution witnesses was over, the learned Special Judge explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Code. In his further statement he denied the case of the prosecution in toto. He has also stated that he went to purchase wood from the lathi and at that time he found that one man was running away and at that time he asked the police in Hindi. Thereupon the police caught him as he also talked in Hindi and the police also extorted CR.A/20/2002 12/43 JUDGMENT Rs.250/- from him. However, he neither led any evidence nor did he examine any witness to support his defence. 3.10. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial court held that the prosecution has established, beyond reasonable doubt, that on 21.10.2000 the accused was found with contraband article 'charas' weighing 1 Kg. 710 grams, without pass or permit, when he was intercepted and apprehended at the Lane near “Shankar Timber Mart” near the house of Hirabhai Bharvad at Joravarnagar, Taluka Surendranagar, District Surendranagar, on the basis of the prior information received by P.W.6, Karshanbhai Jivanbhai Jadav, PSI and as he was found guilty of the offences with which he was charged, the trial court convicted him vide judgment and order dated 23.11.2001 for commission of the offences punishable under Section 8 (c ) read with Section 21 of the NDPS Act and sentenced him to suffer R.I. for ten years and fine of Rs.1 lakh i.d., CR.A/20/2002 13/43 JUDGMENT R.I. for further period of two years, which has given rise to instant appeal at the instance of the accused. 4. Ms. Banna Dutta, 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. 1, Shaileshkumar Kantilal Patel, Ex.7 and P.W.2, Ishwarbhai Mathurbhai Chauhan, Ex.10 who are panch witnesses and P.W.5, Vinodbhai Jayantibhai Soni, a gold smith who had accompanied the raiding party for weighing the muddamal article 'charas', are independent witnesses, 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 her that the prosecution has failed CR.A/20/2002 14/43 JUDGMENT 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 Ms. Banna Dutta, there is non-compliance of the provisions of section 52 and 55 of the NDPS Act. The trial court has erred in holding that the muddamal charas was properly and legally handled and it was not tampered with till it reached at FSL in sealed intact condition. On the aforesaid premises, it is submitted by her that the prosecution has failed 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. She, therefore, urged to allow the appeal. 5. In counter submission, Mr. KT Dave, CR.A/20/2002 15/43 JUDGMENT 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 when he was intercepted by P.W.10, RC Rathod, Ex.29 and P.W.6, KJ Jadav, Ex.15, at the Lane near “Shankar Timber Mart” near the house of Hirabhai Bharvad at Joravarnagar, Taluka Surendranagar, District Surendranagar, on the basis of the prior information received by P.W.6, Karshanbhai Jivanbhai Jadav, PSI. 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 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 was not tampered with during the course of CR.A/20/2002 16/43 JUDGMENT 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. On the aforesaid premises, according to Mr. Dave, learned APP, the prosecution has established the case against the accused beyond reasonable doubt and, therefore, 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. CR.A/20/2002 17/43 JUDGMENT 6. 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 trial 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 trial Court has rightly recorded the order of conviction and sentence. 7. At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal CR.A/20/2002 18/43 JUDGMENT 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. 8. 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 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 CR.A/20/2002 19/43 JUDGMENT 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”. 9. 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 CR.A/20/2002 20/43 JUDGMENT Inspector and the Police Sub Inspector during the course of search of the accused and seizure of the muddamal, contraband article, charas. 10. In this connection, we shall first refer to the testimony of P.W.6, K.J. Jadav, Ex.15, at pages 123-134 of the paper book. P.W.6, K.J. Jadav, PSI, Surendranagar ADS Branch, has, inter alia, testified that he received a secret information from an informant on 21.10.2000 to the effect that near the Land of “Shankar Timber Mart” near the house of Hirabhai Bharvad, a man aged about 30-35 years, speaking Hindi Language belonging to UP and wearing Sky blue pant and shirt with a dark blue rexin bag containing charas was to come to sell it. He, therefore, recorded the said secret information in the register and also sent a copy thereof to his official superior. As his higher officer ordered him to keep P.I. of LCB in the raid, he informed R.C. Rathod, P.I. of LCB with regard to the said information and also about the raid to be carried CR.A/20/2002 21/43 JUDGMENT out. Since there was no register in the LCB Office for recording the said information, RC Rathod, PI prepared a report and registered the said report in the Joravarnagar Police Station. Thereafter Jayendrasinh, a head constable, was asked to procure the presence of two panchas as well as a gold smith with weighing machine for weighing muddamal which could be recovered in the raid. On arrival of the panchas as well as gold smith and the members of the raiding party, all of them were informed about the secret information received by him and accordingly he prepared the preliminary panchnama to the said effect. After preparing the preliminary panchnama, he along with the panchas, gold smith and the members of the raiding party, went to the place as per the description given in the secret information and kept a vigil on the road. He has also testified that at about 4.30 P.M., a person corresponding to the description given in the secret information came there who was intercepted and apprehended by him and R.C. Rathod and he was informed that as per the secret information CR.A/20/2002 22/43 JUDGMENT received by him a person corresponding to the description of the accused was to come with contraband article charas and that was the reason why he was apprehended. On inquiring his name, the accused informed that he is Kalikaprasad Ramsahay Kushvaha. P.W.10, RC Rathod, also informed the accused that he is a gazetted officer and he wants to search him and also informed him that if he is to be searched in presence of another gazetted officer or an executive magistrate, he would arrange for procuring their presence and the option was left to the accused but the accused did not opt for search to be carried out in presence of another gazetted officer or an executive magistrate and told that he may be searched by P.W.10, RC Rathod and, therefore, the accused was searched by P.W.10, RC Rathod, PI in presence of this witness, the panchas, gold smith and members of the raiding party but nothing was found from the person of the accused. Thereafter the dark-blue rexin bag of the accused which was in the hands of the accused was opened and on opening the CR.A/20/2002 23/43 JUDGMENT rexin bag, one plastic bag was recovered. Inside the plastic bag, another plastic bag was found and on opening that plastic bag, five bars of black coloured substance was found and on smelling the substance it was found to be charas. Thereafter the accused was asked to produce the pass/permit for carrying charas with him. The accused could not produce any pass or permit for carrying charas. Thereafter the charas was weighed in the weighing machine carried by the gold smith and on weighing the charas, it was found to be 1 Kg. 710 grams. From these five bars he took 100 grams for sample and thereafter two samples each of 50 grams were prepared and thereafter seizure, sealing and panchnama, etc., were completed and accordingly the second part of the panchnama was also prepared. A complaint for the aforesaid incident was filed at Joravarnagar police station by him where it was registered as CR No.II- 67/2000, which is on record at Ex.21. On filing of the complaint, he handed over the muddamal and accused to the PSO Joravarnagar police station. CR.A/20/2002 24/43 JUDGMENT 10.1. In short, he has deposed as per the complaint lodged by him with Joravarnagar Police Station, which is on record at Ex.21, at pages 145-166 of the paper book. A perusal of the complaint at Ex.21, it is seen that oral testimony of the complainant gets corroboration from the complaint and there is no contradiction between the complaint and the oral testimony of P.W.6, KJ Jadav. It is also mentioned in the complaint about the strict compliance of the provisions of Sections 42, 43, 50, 52 and 57 of the