IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1060 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE A.M.KAPADIA and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SAJJANSING @ RAJU JAGDISHSINH PAWAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1060 of 1997 MR RAJESH M AGRAWAL for Appellant MS BR GAJJAR, APP for Respondent - STATE OF GUJARAT -------------------------------------------------------------- CORAM : MR.JUSTICE A.M.KAPADIA and MR.JUSTICE H.H.MEHTA Date of decision: 13/03/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) 1. The appellant [accused No.1] has, by filing this Criminal Appeal under Section 374(2) of Criminal Procedure Code, 1973 [for short "Cr.P.C."] read with Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for the short "N.D.P.S. Act"], challenged the correctness, legality and validity of the judgment Ex.46, rendered by the learned Additional Sessions Judge, Ahmedabad City, City Civil & Sessions Court, Ahmedabad [for short "the learned Judge of the trial Court"], who presided over the Special Court constituted under Section 36 of the N.D.P.S. Act, on 22.09.1997 in Sessions Case No.313 of 1996, by which the appellant has been convicted under Section 235(2) of Cr.P.C. of the offences punishable under Sections 17 and 18 of the N.D.P.S. Act and is sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.1,000,00/-- and in default of fine to undergo further rigorous imprisonment of one year. 2. The facts leading to this present Criminal Appeal, as per the complaint Ex.29 lodged against the appellant in a nutshell are as follows :- 2.1 On or about 25.09.1996, the complainant Shri P.M.Jadav, Police Inspector, State Narcotic Cell, C.I.D., Crime, Gujarat State, Ahmedabad was present on duty in C.I.D., Crime, Gandhinagar Zone Police Station [for short "Police Station"]. At about 15.45 hours, the complainant received a secret information from the informant to the effect that during the period between 16.00 hours and 17.00 hours on 25.09.1996, one person looking like Marvadi by name Sajjansing Panvar, resident of Chandannagar, Memco, having oval shape face and wearing khakhi coloured pantaloon and coloured printed full sleeved bush-shirt, was about to go from Memco to Kalyan Toll Naka, Naroda, keeping with him one gunny hand bag on which writing "Rentio Tuver Dal" is printed and in that gunny hand bag, he was to carry with him a contraband article named opium. On receipt of such secret information, the complainant made an Entry No.38 in one register. He, immediately, wrote a confidential letter to the Superintendent of Police, State Narcotic Cell, C.I.D. Crime, Gujarat State, Ahmedabad. According to the case of the prosecution, Shri Mohan Za who is a Superior Officer of complainant received that confidential letter on that very day at about 17.30 hours. Simultaneously, he sent one police head constable Shri Maganbhai K. Katara to call two independent persons, who can act as panch witnesses. As soon as two independent persons came to Narcotic Office, situated at New Mental Compound, Ahmedabad the complainant drew a preliminary panchnama in presence of two independent witnesses - [1] Babubhai Mohanbhai Patani; and [2] Indrajit Nagjibhai Rajput. At that time, other police personnel Police Inspector Shri N.N.Pathan, Police Sub-Inspector Shri Y.K.Chudasama, Police Sub-Inspector Shri A.R. Singh, Police Head Constable Shri M.K.Katara, Police Constable Shri P.V.Parmar and Police Constable Shri D.A. Chavda were also present with Shri Jadav. These police personnel and panch witnesses were appraised of by Shri Jadav about the secret information received by the complainant and he drew a preliminary panchnama in presence of said two independent witnesses during the period from 15.30 hours to 15.45 hours, on 25.09.1996. Thereafter, the complainant, in company of two panch witnesses and other police personnel, by taking with him necessary articles required for packing and sealing the articles, scale and measurement weights etc., left police station for the place of which description was given by the informant in his secret information. They reached to that place, at about 16.05 hours. The complainant, panch witnesses and police personnel took their respective positions surrounding that place, in such a way that no one can easily locate them. As per the case of the prosecution, at about 16.40 hours, one person resembling the description of that person given in a secret information, was found coming from the side of Omkar Mill, towards the four way crossing. The complainant made that person to halt. In presence of panch witnesses and police personnel, it was found that the person was carrying with him one gunny hand bag on which writing "Rentio Tuver Dal" was printed, in his hand. That person was interrogated by the complainant and on asking his name, that person informed that he was Sajjansing alias Raju Jagdishsing Panvar, aged about 22 years, resident of Chandannagar, just adjacent to Premnagar, Memco, Naroda Road, Ahmedabad. That very person is appellant before this Court. The complainant and Police Inspector Shri N.N.Pathan informed the appellant that they were gazetted officers. The complainant also identified the panch witnesses to the appellant. The complainant informed the appellant that the police had an information that he [appellant] was about to pass on that road by carrying opium with him [appellant] and, therefore, he [appellant] was required to be searched. The complainant also informed the appellant that they could manage to call Gazetted Officer or Magistrate, if the appellant wanted to keep such officer present at the time of search. For giving such type of information, one writing was also given to the appellant. Thereupon, the appellant informed the complainant that he did not want to call any other officer and that police and panch witnesses could take his search. Thereafter, a gunny hand bag, which was in the hand of the appellant was examined. A writing of "Rentio Tuver Dal" printed both in Gujarati and English was there on the bag. There was one printed emblem of "Rentio" on the bag. The complainant, thereafter, searched that gunny hand bag, which was with the appellant, in his hand, in presence of panch witnesses and other police personnel. On that gunny hand bag being searched, it was found that there were two plastic boxes containing certain weighty object in that plastic boxes. The lids of that two plastic boxes were opened and it was found that both the plastic boxes were filled-in with brown thick semi liquid substance. It was found that the said substance was nothing but thick opium juice. First plastic box, which was closed with brown coloured lid was weighed with the help of weighing scale by the police constable Shri D.A. Chavda. It was found that that plastic box along with the opium was weighing 950 grams. That plastic box was given Mark A. Thereafter, another plastic box was weighed together with substance in it and it was found that it was weighing 800 grams. That second plastic box was given Mark - B. Thereafter, the sample of 50 grams of opium was taken from each plastic box and that two samples each of 50 grams of opium was taken in a separate plastic bag. A sample, which was taken from plastic box Mark-A, was given Mark A/1. Likewise, sample taken from plastic box Mark-B was given Mark B/1. Simultaneously, one another sample of 50 grams of opium was taken in plastic bag from each plastic box and that another sample was taken as a Reserve Sample. Each such sample was placed in one small plastic box, with a label of Babul Jarda 135 and that samples were duly closed, properly packed and sealed by putting a paper slip containing signatures of panch witnesses, as per the prescribed procedure. It is the case of the prosecution that each such packed sample article was sealed by putting a seal of Police Inspector, N.D.P.S., G.S., C.I.D., Crime, Ahmedabad. It is the case of the prosecution that in all 1 kilogram and 750 grams of opium of value of Rs.43,000/-- [Rupees Forty Three Thousand Only] was found from actual conscious physical possession of the appellant. All that articles were seized under a panchnama in the presence of panch witnesses. It is the case of the prosecution that at the time of search of person of the accused, the currency of Rs.17/-- was also found from the appellant. It is the case of the prosecution that this recovery panchnama was drawn below a preliminary panchnama drawn earlier during the period from 15.45 hours to 17.45 hours. The appellant was arrested at about 17.45 hours on that very day. 2.2 Thereafter, the complainant, by taking with him all the muddamal articles and the custody of the appellant went to the police station and lodged his complaint, at about 19.20 hours on 25.09.1996. That complaint came to be registered as C.R.No.II-11/96. On registering that complaint, the offence stated in the complaint was further investigated by the police. During the course of investigation, it was found that one Laherilal Roshanlal had aided and abetted the present appellant in committing the offence of possessing and carrying the contraband article - opium with him. The muddamal articles along with forwarding letter were sent to Forensic Science Laboratory, Ahmedabad [for short "F.S.L."]. On completion of police investigation, the complainant, who was also an investigating officer filed the charge-sheet against the two accused, one present appellant and another Laherilal Roshanlal. That charge-sheet came to be registered as Sessions Case No.313 of 1996 in the Special Court constituted under Section 36 of the N.D.P.S. Act. 3. On the basis of the material on record, the learned Judge of the trial Court framed a charge at Ex.1 on 24.02.1997. On recording a plea of the accused, both the accused have pleaded not guilty to the charge and they claimed to be tried. To prove the guilt of the accused, the prosecution examined following in all five prosecution witnesses. [1] P.W.1 Babubhai Mohanbhai Patani, [panch witness No.1] Ex.13 [2] P.W.2 Police Constable, Shri Dilipkumar Alabhai Chavda Ex.14 [3] P.W.3 Police Constable, Shri Kisanrao Laxmanrao, [who carried the samples together with forwarding letter and deposited them in the office of F.S.L.] Ex.17 [4] P.W.4 Indrajit Nagjibhai Rajput [panch witness No.2] Ex.21 [5] P.W.5 Police Inspector, Shri Prakash Mahendrabhai [Complainant] Ex.22 4. The prosecution has also produced and proved certain documents in support of the case for which charge has been framed against the accused. The prosecution has placed heavy reliance mainly on following documents. 1. Forwarding letter with which three articles/samples were sent to F.S.L. Ex.18 2. Receipt issued by the Officer of F.S.L., for having received sealed and intact two boxes.Ex.19 3. Letter with which report of F.S.L. was sent to the Police Inspector of Anti Narcotic Squad, C.I.D. Crime, Gujarat State, Ahmedabad. Ex.20 4. Entry No.38 dated 25.09.1996 [15.45 hours] from page No.7, of Information Register. Ex.23 5. Office copy of confidential letter of the complainant addressed to his immediate Superior Officer with regard to secret information. Ex.24 6. Panchnama. Ex.25 7. A written information given to the appellant for making compliance of Section 50 of the N.D.P.S. Act. Ex.26 8. Seizure memo signed by the appellant for articles having recovered and seized from him. Ex.27 9. A written information giving reasons for his arrest signed by the appellant. Ex.28 10. Original complaint. Ex.29 11. A report of complainant sent to P.S.O. of Police Station. Ex.30 12. Different paper slips bearing signatures of panch witnesses found from muddamal articles Marks - A, A/1, A/2, B, B/1 and B/2, Ex.31 to 36 respectively. 13. Entry No.2 dated 25.09.1996 [19.20 hours] from page-41 of Station Diary kept and maintained in the Police Station. Ex.37 14. Notification of the State Government declaring areas specified for three Police Stations of Ahmedabad. Ex.38 15. Resolution dated 10.12.1993 of the State Government creating a Narcotic Cell in the Police Force. Ex.39 16. Office order dated 19.11.1993, making posting of different police personnel in Narcotic Cell. Ex.40 On recording of evidence of prosecution was over, the Presiding Judge of the trial Court brought to the notice of and explained to each accused, the circumstances appearing against him in evidence of prosecution witnesses. The appellant has taken a defence of total denial of the case. Still, however, he has submitted his written reply (statement) Ex.42. The defence of accused No.2 i.e. Laherilal Roshanlal is also of complete denial of the case. Thereupon, after hearing the arguments of the learned advocates of both the parties and after scrutinizing, analyzing and appreciating the evidence on record, the learned Judge of the trial Court came to a conclusion that the case against the appellant for the offences punishable under Sections 17 and 18 of the N.D.P.S. Act was proved beyond reasonable doubt and further that the case against the accused No.2 was not proved beyond reasonable doubt. On the basis of such conclusions, the learned Judge of the trial Court, by rendering her judgment Ex.46 in Sessions Case No.313 of 1996 on 22.09.1997 convicted the appellant [accused No.1] and sentenced him as stated earlier in para-1 of this judgment. The learned Judge of the trial Court by that very judgment, acquitted the accused No.2. 5. Being aggrieved against and dissatisfied with the said judgment of conviction and sentence, the original accused No.1 i.e. appellant herein, has preferred this present Criminal Appeal. It be noted that the State Government has not preferred any appeal against the judgment of acquittal rendered in favour of original accused No.2. 6. We have heard Mr.R.M. Agarwal, learned advocate for the appellant and Ms.B.R.Gajjar, learned APP for the respondent i.e. State of Gujarat, in detail at length. Ms. Gajjar has taken us through the entire evidence on record oral as well as documentary. We have perused the record and proceedings of the case called for from the trial Court. We have carefully examined the impugned judgment, also. 7. Mr.R.M.Agarwal, learned advocate for the appellant has assailed the impugned judgment on various counts, which are listed hereinbelow. [A] The complainant had no authority or power to search, seize and arrest for the offence under the N.D.P.S. Act. [B] The complainant failed to comply with the requirements of Section 42 of the N.D.P.S. Act. As per the argument of Mr.Agarwal, the complainant has contravened the provisions of Section 42 of the N.D.P.S. Act by not reducing the secret information given to him by the informant, into writing and further by not sending a copy of said information to his immediate Superior Officer, forthwith. [C] Before searching the gunny hand bag, which was in the hand of the appellant, the complainant contravened the provisions of Section 50 of the N.D.P.S. Act, by not informing the appellant about existence of his right to be searched before a Gazetted Officer or a Magistrate. [D] On reading Section 51 of the N.D.P.S. Act read with Section 4 of the Cr.P.C., the complainant has contravened the provisions of Section 102(3) of Cr.P.C. [E] The complainant has by not forwarding the appellant and articles seized, without unnecessary delay, to the officer in-charge of nearest police station, contravened the provisions of Section 52(3) of the N.D.P.S. Act. [F] Because the complainant failed to forward the appellant and the muddamal articles to the officer in-charge of the nearest police station, the officer in-charge of the nearest police station could not take the charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized by the complainant and, thereby that officer in-charge of the police station could not affix his seal to such articles with the seal of the in-charge of the police station, and hence, the provisions of Section 55 of the N.D.P.S. Act are contravened by the concerned officers. [G] The complainant has committed a breach of the provision of Section 57 of the N.D.P.S. Act, by not sending full report of all the particulars of arrest of appellant and seizure of the muddamal articles to his immediate superior officer, within 48 hours, next after such arrest and seizure. [H] The prosecution has totally failed to prove that article which was allegedly recovered and seized from the appellant, was an opium being a contraband substance under the N.D.P.S. Act. [I] Both the panch witnesses have not supported the case of the prosecution and, therefore, the prosecution was obliged to declare the said witnesses as hostile witnesses. Thus, the prosecution wants to prove the case against the appellant, by placing reliance on the evidence of police witness only and that the evidence of such police witness does not get any corroboration from the independent witnesses. [J] The documents which are produced by the prosecution during the trial are not duly proved in accordance with the provisions of Indian Evidence Act and, therefore, that documents cannot be looked into and considered by the Court. [K] The complainant is an interested witness because he was interested to see that the appellant is convicted and sentenced, any how. The prosecution wants to place a heavy reliance on the evidence of P.W.5 Shri Prakash Mahendrabhai [Ex.22]. He is a Police Officer, who received a secret information, carried out the raid, searched the appellant, recovered and seized the articles under a panchnama, lodged his complaint in the police station, investigated the case from the beginning to end and ultimately, and lastly filed a charge against the appellant. And, therefore, he is most interested witness. His evidence should be discarded. [L] According to Mr.R.M.Agarwal, P.W.5 Shri Prakash Mahendrabhai [Ex.22] is not a trustworthy and wholly reliable witness, because there are so many contradictions and omissions in his evidence and that his evidence is not consistent with the documentary evidence on record. [M] Looking to the nature of evidence with regard to journey of samples right from the seizure of that muddamal articles, to sending of that muddamal articles to F.S.L. there was every possibility of samples being tampered with and, therefore, articles which were seized, did not reach to F.S.L. and, therefore, the report on sample received from F.S.L. cannot be said to be a report of sample of article seized. [N] The appellant cannot be convicted by placing reliance on any evidence for which no question was asked to him during the course of recording his further statement under Section 313 of Cr.P.C. [O] The learned Judge of the trial Court did not follow the correct procedure, as prescribed under Sections 313, 232 and 233 of Cr.P.C. read with paras 105, 113 and 114 of the High Court Criminal Manual. [P] The learned Judge of the trial Court did not apply her mind at the time of inflicting sentence. Mr.Agarwal has argued that though the learned Judge of the trial Court, by holding the appellant guilty convicted him for two offences punishable under Sections 17 and 18 of the N.D.P.S. Act, inflicted the sentence of only one set namely rigorous imprisonment of 10 years and to pay a fine of Rs.1,00,000/-- and in default of fine to undergo further rigorous imprisonment of one year. So from the judgment, it is not clear as to for which particular offence, appellant has been sentenced. 8. Mr.R.M.Agarwal, learned advocate for the appellant has vehemently argued that in view of the aforesaid contentions taken by him, the judgment of conviction and sentence is wrong and faulty and against the evidence on record and, therefore, in no case, it can be said that the case against the accused is proved beyond reasonable doubt. He has further argued that looking to contentions taken by him, the judgment of conviction and sentence requires to be quashed and set aside by allowing this appeal. In support of his arguments, he has burdened this judgment by citing relevant, irrelevant, necessary, unnecessary, applicable, inapplicable, on the point and off the point so many authorities duplicating the points he asserted. That authorities are listed hereinbelow. [1] ALIHUSEN NAJARALI Vs. THE STATE OF GUJARAT, reported in 1974 Cri.L.J. 524; [2] BOOTA SINGH Vs. STATE OF PUNJAB, reported in 1980 Cri.L.J. 336 [P & H]; [3] SADDA KHAN AND ANOTHER Vs. SULTAN KHAN AND OTHERS, reported in AIR 1920 Lahor 263 (2); [4] VALSALA Vs. STATE OF KERALA, 1993 Supp. (3) Supreme Court Cases 665; [5] STATE OF RAJASTHAN Vs. DAULAT RAM, reported in (1980) 3 SCC 303; [6] GANESH NAIK Vs. THE STATE, reported in 1996 Cri.L.J. 3670 [Orissa]; [7] HARNEK SINGH Vs. STATE OF RAJASTHAN, reported in 1998 Cri.L.J. 299; [8] BALAJI SAHU Vs. STATE, reported in 1997 Cri.L.J. 2843 [Orrisa] ; [9] PHOOL KUMAR Vs. STATE (DELHI ADMINISTRATION), reported in 1998 (1) Crimes 54 (Delhi); [10] LACHHO DEVI Vs. STATE, reported in 1991 Cri.L.J. 2793 [Delhi]; [11] SHOUNATH Vs. STATE OF RAJASTHAN, reported in 1998 Cri.L.J. 169 [Rajasthan]; [12] MAKHAN RAM Vs. STATE OF PUNJAB, reported in 1995 (2) Crimes 716 [P & H]; [13] MEGHA SINGH Vs. STATE OF HARIYANA, reported in AIR 1995 S.C. 2339; [14] ROY V. D. Vs. STATE OF KERALA, reported in AIR 2001 S.C. 137 [Kerala]; [15] BECKODAN ABDUL RAHIMAN Vs. STATE OF KERALA, reported in 2002 SAR (Criminal) 445; [16] STATE OF ORISSA Vs. P. SIMANCHAL PATRA, reported in 2002 (4) Crimes 23 (SC); [17] JOGINDER KUMAR Vs. STATE OF U.P. AND OTHERS, reported in (1994) 4 SCC 260; [18] Xerox copy of standing instructions published on pages 675 to 678 of book titled Law of Narcotic Drugs and Psychotropic Substances Act, 1985. [19] MER VEJA MERAMAN Vs. STATE OF GUJARAT, reported in 1988 (2) GLH 515; [20] ALI Vs. STATE OF KERALA, reported in 2001 (4) Crimes 166 [Kerala]; [21] Xerox copy of relevant paras 103 to 117 from the High Court Criminal Manual 23; [22] HARIJAN MEGHA JESHA Vs. STATE OF GUJARAT, reported in AIR 1979 S.C. 1566; [23] IN RE KAMYA, reported in AIR 1960 ANDHRA PRADESH 490; [24] SAJAN ABRAHAM Vs. STATE OF KERALA, reported in 2001 AIR SCW 2970; [25] STATE OF PUNJAB Vs. BALBIR SINGH, reported in 1994 (1) CRIMES 753 (SC); [26] THE STATE OF PUNJAB Vs. BALDEV SINGH ETC., reported in 1999 (3) Crimes 147 (SC); [27] BABU Vs. STATE OF KERALA, reported in 1999 SAR (Criminal) 780; [28] KALAYATH NASSAR Vs. STATE OF KERALA, reported in 2000 AIR SCW 271; [29] VINOD Vs. STATE OF MAHARASHTRA, reported in (2002) 8 SCC 351; [30] K. MOHANAN Vs. STATE OF KERALA, reported in (2000) 10 SCC 222; [31] STATE OF HARYANA Vs. SEWA RAM, reported in (2000) 10 SCC 395; [32] STATE OF HARYANA Vs. VIKRAM SINGH, reported in 2002 SCC (Cri.) 469; [33] BHERULAL VIRAJI KUMAVAT Vs. STATE OF GUJARAT, reported in 1998 (3) G.L.R. 2497; [34] ALI MUSTAFFA ABDUL RAHMAN MOOSA, reported in (1994) 6 SCC 569; [35] SAIYAD MOHD. SAIYAD UMAR SAIYAD AND OTHERS Vs. STATE OF GUJARAT, reported in (1995) 3 SCC 610; [36] T. P. RAZHAK ALIAS NAGAPPAN RAZHAK Vs. STATE OF KERALA, reported in 1996 SCC (Cri) 57; [37] KOLUTTUMOTTIL RAZHAK Vs. STATE OF KERALA, reported in 2000 SCC (Cri) 829; [38] THANDI RAM Vs. STATE OF HARYANA, reported in JT 1999 (3) SC 231; [39] GURBAX SINGH Vs. STATE OF HARYANA, reported in AIR 2001 SC 1002; [40] SHIVABHAI GAJMALBHAI Vs. STATE OF GUJARAT, reported in 1996 (2) G.L.R. 64; [41] DWARIKESH SUGAR INDUSTRIES LTD. Vs. PREM HEAVY ENGINEERING WORKS (P) LTD. AND ANOTHER, reported in (1997) 6 SCC 450; [42] P. RAMACHANDRA RAO Vs. STATE OF KARNATAKA, reported in 2002 (2) Crimes 200 (SC); [43] SUGANTHI SURESH KUMAR Vs. JAGDEESHAN, reported in JT 2002 (1) SC 220; 9. Even by citing aforesaid authorities, Mr.R.M.Agarwal was not satisfied for his submissions at the stage of arguments, but he has further burdened this