CR.A/179/1997 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 179 of 1997 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 SUKHABHAI DEVABHAI PISARA ========================================= =Appearance : MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MS HIMALI M DAVE for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the judgment and order dated 31.12.1996 passed by CR.A/179/1997 2/6 JUDGMENT the Special Judge, Palanpur in Special Case No. 34 of 1994 acquitting the accused for the offence punishable under Sections 8(b)(c) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The case of the prosecution in nut-shell is that secret information was received by PSI Rajendra Yagnik (PW-11) that one Sukhabhai Devabhai Pisra (original accused – present respondent) of village Khari is growing cannabis plants in his farm and is storing cannabis in his house. A raiding party was constituted and panchas were called. After preliminary panchnama, the raiding party went to farm of accused at Khari village. After inquiring about the identity, a search was carried out of the house of the accused and two bags containing cannabis (ganja), weighing 13 kgs and 9 kgs respectively were recovered. A sample of about 50 grams was taken from each of the bag and sealed. Then the raiding party went to the farmland and saw cultivation of about 550 cannabis plant. The said standing crop was cut and seized. The entire muddamal was brought to the police station and a complaint was registered against the accused. After completion of investigation, the accused was put on trial for commission of offences punishable under Sections 8(b)(c) and 20(b) of the Act. The Trial Court found that the prosecution has not been able to prove its case beyond reasonable doubt and there was breach of several mandatory provisions of the Act and, therefore, acquitted the accused. 3. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and with his assistance have perused the judgment and gone through the record of the CR.A/179/1997 3/6 JUDGMENT case. 4. Mr. Nanavati has submitted that the Trial Court has committed an error in arriving at a conclusion that there has been non-compliance of requirements of Section 42 of the Act. He has argued that officers of gazatted rank are not required to comply with the requirement of Section 42(2) of the Act and it is not in dispute that PW-9 Dy.S.P. Brahmbhatt, who was a member of the raiding party, was a gazatted officer. He has submitted that the rationale for this provision of informing superiors is that when the arrest, search and seizure is without authorisation by gazetted rank officers, the officers taking action must keep their superiors informed. The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank and seniority and power to authorise subordinates to proceed to action, is totally different. They are the source of power of authorisation. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under sub-section (2) of Section 42, therefore, cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things. At first blush the argument seems attractive but a scrutiny of the evidence would reveal the fallacy of the said argument. PSI Yagnik (PW-11) says in his evidence that secret information was received by him and upon receipt of the tip he gathered other officials. So this is not a case where CR.A/179/1997 4/6 JUDGMENT information was received by Dy.S.P. Brahmbhatt (PW-9). Therefore, it was incumbent upon PSI Yagnik (PW-11) to reduce the said information in writing and inform his superior officer. The reason given by PSI Yagnik (PW-11) for not recording the information is that he received the tip while he was on the road at that time. This fact is belied by the evidence of Head Constable Trikambhai (PW-2), Head Constable Abjiji Ramaji (PW-3) and Constable Babubhai Nagjibhai (PW-4) who all state that they were all informed about the secret information at the police station and departed from the police station alongwith PSI Yagnik and Shri Brahmbhatt for conducting raid. So their evidence would show that PSI Yagnik did come to the police station assuming that he received the tip while he was on road and therefore, he ought to have reduced the same into writing after reaching the police station. Therefore, we agree with the finding of the Trial Court that there has been violation of Section 41 of the Act. 5. The Trial Court has also found that there are serious discrepancies in the evidence of members of the raiding party rendering the search and seizure of cannabis highly suspect. PW-4 Babu states that he got a businessman with weights and scales to the house of the accused for weighting the seized muddamal. He further states that the said person remained at the house of the accused till the entire raid was completed. However, PW-11 PSI Yagnik states that no other person except members of the raiding party were present at the house of the accused. Furthermore, PW-2 Trikambhai states that weights and scales were procured by Babubhai PW-4 from the hosue of the village Sarpanch. This in our opinion is a serious discrepancy affecting the credibility of the prosecution case. In CR.A/179/1997 5/6 JUDGMENT addition, there is no evidence on record to show how 550 cannabis plants were cut by the members of the raiding party. The prosecution has not explained whether the raiding party had carried cutting equipment with it from the police station or whether they procured the same from the house of the accused or from somewhere else. Also, there is nothing on record to show how the entire 550 plants were brought from the site of offence to the police station. PSI Yagnik has stated that they had used a tractor but no details about the same are mentioned in the panchnama nor has anything been brought on record by the prosecution in support of its version. Lastly, as per the prosecution case, the raid continued for about 6 hours. However, no independent person staying in the neighbourhood of the accused has been examined. There is also discrepancy in the evidence of witness on the point whether persons were staying in the neighbourhood. The panch who has supported the seizure panchnama has been found to be a stock panch and it has come in evidence that he is a member of home-guard and reports at the police station. Also, he has been cited as a panch witness by the prosecution in about 6-7 other cases. Therefore, not much reliance can be placed upon his evidence. In absence of any other independent evidence and considering the serious discrepancies on vital aspects in evidence of police officers, the Trial Court has rightly held that the prosecution has failed to prove its case beyond reasonable doubt. 6. In view of the facts, the prosecution has violated the provisions of Section 41 of the Act. If the Trial Court has not believed the prosecution story, no different conclusion is possible. Further, the other witnesses of the prosecution also CR.A/179/1997 6/6 JUDGMENT have no ring of credibility to their evidence. Therefore, it appears that the evidence of all these witnesses have rightly been discarded by the learned Trial Judge. 7. For the foregoing reasons, we do not find any infirmity with the reasoning given by the Sessions Court for acquitting the respondent. The appeal, therefore, deserves to be rejected and is accordingly dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar