CR.A/793/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 793 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 ? ========================================================= SANTOSH SHIVNATH MEHTA Versus STATE OF GUJARAT ========================================================= Appearance : MS REKHA H KAPADIA for Appellant. MR PD BHATE, ADDL. PUBLIC PROSECUTOR for Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 01/12/2008 ORAL JUDGMENT 1. This appeal preferred under section 374 (2) of the CR.A/793/2007 2/11 JUDGMENT Code of Criminal Procedure is directed against the judgment and order 21.09.2006 passed by the Special Judge, Fast Track Court No. 2, Bhuj-Kachchh in Special Case No. 59 of 2005 whereby the learned Judge convicted the appellant for an offence punishable under section 20(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 [the NDPS Act, for short] and sentenced him to 5 years' rigorous imprisonment and a fine of Rs.50,000/-. 2. The appellant was also tried for an offence punishable under section 29 of the NDPS Act but the learned trial Judge acquitted the appellant for the offence punishable under the said Act. 3. Short facts leading to the present appeal are as under:- 4. On 20.05.2005 one Vishnupal Chandrapal came to mundra Police Station and complained to R.B. Rana, Police Sub-Inspector who was present on duty at that time that his wife and daughter were missing since last 8 days and they were likely to be at village Nana Kayopa with one Santosh Shivnath Mehta, the present appellant. The police called two panchas, viz. Gaurigiri Chhagangiri Goswami and Dharmendrabhai Shayamjibhai Jeshar and they reached village Nana Kapoya in Harijanvas where they found the appellant with one woman and child. The appellant was questioned but he could not give satisfactory reply and was trying to escape with one travel bag. Therefore his travel bag was opened from which ganja was found. The appellant was asked to CR.A/793/2007 3/11 JUDGMENT produce permit but he could not produce any permit. Upon further search, more quantity of the contraband article was found from his possession. The appellant was also informed that he can be searched before a gazetted officer or a Magistrate but he refused and, therefore, seizure panchnama was drawn in the presence of panchas. Head constable Dalipsinh called a person named Ranchhod Shivji Gheda for weighing the contraband and upon weighing, one packet contained 950 gms of gnaja and another plastic packet contained 6 kgs 200 gms Ganja was found. Two samples were drawn from each packet and one set of samples were forwarded to FSL and one each were kept as reserve sample and rest of the contraband was seized and sealed under panchnama. PSI R.B. Rana came back to Mundra Police Station and he gave his complaint at the police station which was registered by the PSO H.C. Subhashpuri under the NDPS Act as C.R. No. 01 of 2005. Necessary entires were also made in the station diary with regard to the muddamal. The samples which were seized were sent to FSL for the purpose of detailed analysis. Upon receipt of the detailed analysis report from FSL, as the appellant had committed the offence punishable under the provisions of NDPS Act, the appellant was charge sheeted and produced before the learned Special Judge, Fast Track Court No.2 at Bhuj. The learned trial Judge framed charge against the appellant, vide Exh.5, for offence punishable under sections 20(B) and 29 of the NDPS Act. The appellant pleaded not guilty to the charge levelled against him, and, therefore, the matter was set down for full fledged trial before the learned special CR.A/793/2007 4/11 JUDGMENT Judge. 5. In order to bring home the guilt against the appellant-accused, the prosecution has examined the following witnesses: PW. No. Name Exh. No. 1 Gaurigiri Chhagangiri Goswami [panch witness] Exh. 9 2 Dharmendra Shamji Jesar [panch witness] Exh. 13 3 Ranchhod Shivji Gheda [witness] Exh. 14 4 Akbarali Bachubhai Khoja [panch witness] Exh. 15 5 Ramju Ishak Khalifa [panch witness] Exh. 19 6 Rajpalsinh Bhagirathsinh Rana [Police Sub-Inspector] Exh. 22 7 Athabhai Laljibhai Chaudhary [Investigating Officer] Exh. 24 The prosecution has also produced the following documentary evidence: Sl.No. Particulars Exh. No. 1 Panchnama of search carried out t the house of accused Exh. 10 2 Discovery Panchnama of Dairy Exh. 16 3 F.I.R. Exh. 23 4 FSL Report of Narcotics Department Exh. 25 5 Copy of police yadi sent to FSL Exh. 26 6 Receipt from FSL Exh. 27 7 Letter of FSL Exh. 28 8 FSL Report Exh. 29 6. At the conclusion of the trial further statement of CR.A/793/2007 5/11 JUDGMENT the appellant was recorded under section 313 of the Cr. P.C.. The appellant pleaded before the Court that a false case has been foisted on him. 7. Learned trial Judge, after appreciating the entire evidence on record of the case, held that the prosecution has established that the appellant was found in possession of Ganja weighing 7 kgs and 150 gms in the raid carried out on 29.05.05. The learned Judge relied on the deposition adduced by the prosecution, more particularly the deposition of PW.6 Rajpalsinh B Rana, Ex.22, PW.7 Athabhai L Chaudhary, Investigating Officer Exh. 24 and held that all procedural formalities were meticulously done by the raiding party and all the provisions contained in the NDPS Act were scrupulously followed and thus the prosecution, on the basis of oral deposition as well as documentary evidence such as panchnama of the place of incident, report of FSL etc. has successfully established the involvement of the appellant in the commission of offence. The learned Judge held that in view of recovery of 7 kgs 150 gms of Ganja from the possession of the accused, the accused has committed an offence punishable under section 20(B) of the NDPS Act, and sentenced him to 5 years' rigorous imprisonment and a fine of Rs.50,000/-, i.d. Further rigorous imprisonment for one year, but acquitted the appellant for offence punishable under section 29 of the NDPS Act. 8. Ms. Rekha Kapadia, learned advocate for the appellant, submitted that out of 7 witnesses, all the panch witnesses have turned hostile and not CR.A/793/2007 6/11 JUDGMENT supported the prosecution case indicating involvement of the appellant in the commission of offence. Learned advocate submitted that on perusal of the deposition adduced by PW.6 Rajpalsinh, Police Sub-Inspector Exh.22, and Athabhai,investigating officer, PW.7 Exh.24 it becomes clear that the necessary procedure was not followed by the raiding party at the time of proceeding for the raid and even subsequently while seizing the muddamal and sealing the same for the purpose of sending it to the FSL. Learned advocate submitted that the appellant was not asked to have the search in the presence of a gazetted officer or Magistrate as laid down in section 50 of the NDPS Act, and, therefore, there is breach of section 50 of the Act and benefit of the same is required to be given to the appellant. Learned advocate further submitted that even the provisions contained in sub-section 2 of section 42 has not been followed by the raiding party and as per section 57, the officer concerned is required to send report of the raid to the higher officer within 48 hours after the arrest or seizure of the muddamal article from the appellant. The aforesaid procedure was also not followed by the raiding party. Learned advocate further submitted that as the mandatory provisions contained in section 42, 50, 55 and 57 are not complied with, the appellant is required to be exonerated in view of a catena of decisions rendered by the Apex Court as well as by this Court. 9. On the other hand, learned APP representing the State submitted that the prosecution has followed CR.A/793/2007 7/11 JUDGMENT the entire procedure in a most meticulous manner and even after carrying out the raid and seizure of the muddamal article from the appellant, the sealing procedure was followed in a scrupulous manner. It is also reflected in the deposition adduced by PW.6 Rajpalsinh Exh. 22 and the deposition of the Investigating Officer Athabhai PW.7 Exh. 24. On perusal of the documentary evidence and detailed report of FSL vide Exh.33, it becomes clear that the contraband article which was recovered from the possession of the appellant was Ganja within the meaning of NDPS Act and considering the fact that Ganja weighing 7 kgs 150 gms was recovered from the possession of the appellant, he was rightly imposed the sentence of rigorous imprisonment of 5 years and fine of Rs.50,000/-, i.d. further rigorous imprisonment for one year, and no interference is called for in the judgment rendered by the learned trial Judge and the appeal requires to be dismissed. 10.I have heard learned advocate Ms. Rekha Kapadia for the appellant and Mr. Bhate, learned APP for the State. This Court has also undertaken a complete and comprehensive appreciation of all vital facts of the case and the entire evidence on record with regard to the broad and reasonable probabilities of the case. The prosecution has examined 7 witnesses in order to prove the inextricable involvement of the appellant in the commission of offnece punishable under section 20.B of the NDPS Act. Out of 7 witnesses, the panch witnesses have turned hostile. Therefore, the entire case of the prosecution clinges on the deposition adduced by PW.6 Rajpalsinh CR.A/793/2007 8/11 JUDGMENT Exh.22 and Athabhai L Chaudhary, PW.7, Exh.24. On perusal of the deposition adduced by Rajpalsinh, it becomes clear that the raid was carried out on 29.05.05 and during the raid, when the appellant was about to leave the house in which he was staying, he was caught red-handed and on the search of bag being carried out by the raiding party, he was found in possession of contraband article weighing admeasuring 7 kgs and 150 gms. He has further deposed in his testimony that as the appellant was not having necessary permit to keep the contraband article with him, he was informed that he can be searched before a gazetted officer or a Magistrate but he refused and, therefore, seizure panchnama was drawn in the presence of panchas. During the search of his bag, Ganja weighing 7 kgs 150 gms was found in his possession. He has narrated as to in what manner the muddamal article which was recovered from the appellant was weighed in the presence of panch witness. After weighing the muddamal article, a sample of the seized article weighing approximately 25 gms was taken out from the muddamal article and it was sealed in the presence of panch witness for sending the same to FSL. A reserve sample was also kept in another plastic bag and the plastic bag was kept in cloth bag and thereafter the sealing procedure was done in the presence of panch witness. Panchnama with regard to the seizure and sealing procedure was done in the presence of panch witnesses. 11.The deposition adduced by Athabhai, PW.7 Exh.24 is also with regard to the raid and the manner in which CR.A/793/2007 9/11 JUDGMENT the raid was carried out by the raiding party. On further perusal of the deposition adduced by him, he has also mentioned as to the manner in which the muddamal which was seized was sealed in the presence of the panch witnesses. However, the detailed procedure of the sealing of the muddamal has not been narrated by this witness in his deposition. I have also perused the documentary evidence i.e. the panchnama of the raid and seizure of muddamal article which is at exh.10/C. On perusal of the panchnama at Exh,10/C it becomes clear that the muddamal which was recovered from the possession of the appellant was sealed in the presence of panch witnesses. While sealing the muddamal article, slips containing the signature of the panch witnesses were also placed therein, and thereafter it was sealed and rubber stamp of police sub- inspector, Mundra, Kachchh was placed on the muddamal article seized in the presence of panch witnesses. Likewise, panchnama produced at exh.16 also mentioned about the sealing procedure wherein the muddamal was seized in the presence of panch witnesses and after completing the formalities of sealing, the seal of the police sub-inspector, Mundra was placed on the seized muddamal. The muddamal article was sent to FSL for analysis and the report given by the FSL is also carefully perused by me. Considering the documents at Exh.29/C, the muddamal which was received by FSL has been elaborately narrated therein. Two muddamal packets having marks 'A' and 'D' were received by the FSL whereon the seal of police Sub-Inspector, Mundra was placed on both the packets marked 'A' and CR.A/793/2007 10/11 JUDGMENT 'D'. It was further mentioned that three seals were also placed on the packets marked 'A' and 'D' which was received by FSL. Thus, on perusal of the deposition adduced by Rajpalsinh, PW.6 Exh.22 and Athabhai, PW.7 Exh.24, it becomes clear that they have not stated in their deposition about the complete sealing procedure as well as the placing of the seal of PSI, Mundra and well as three different seals on packets marked 'A' and 'D'. In view of a catena of decisions rendered by the Apex Court as well as by this Court, if the sealing procedure is not fool-proof or there is any defect in the sealing procedure, then it would give rise to tampering of the muddamal articles and tampering of muddamal article cannot be ruled out. 12.Considering the facts and circumstances of the case, I am of the view that since the sealing procedure was defective, the benefit of the same is required to be given to the appellant as the provisions under the NDPS Act are very stringent and they are required to be followed in a most scrupulous manner. Considering the ratio laid down in the case of GOPILAL SHRIRAMJI JAT v/s STATE OF GUJARAT [Criminal Appeal No. 568 of 2000], this appeal requires to be allowed on the ground of defective sealing procedure. 13.Even otherwise, if we consider the other provisions of the NDPS Act, the prosecution has not established that mandatory provisions contained in sections 50, 53 as well as 55 are followed in a scrupulous manner. Be that as it may, since the appeal is CR.A/793/2007 11/11 JUDGMENT required to be allowed on the short ground of defective sealing procedure, I am not entering into detailed discussion on the breach of other mandatory provisions committed by the prosecution in the present case. 14.For the foregoing reasons, the judgment and order 21.09.2006 passed by the Special Judge, Fast Track Court No. 2, Bhuj-Kachchh in Special Case No. 59 of 2005 is quashed and set aside. The appellant be set at liberty if not required in any other case. 15.The appeal stands allowed accordingly. mathew [H.B.ANTANI, J.]