CR.A/1225/2005 1/48 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1225 of 2005 With CRIMINAL APPEAL NO. 1301 OF 2005 For Approval and Signature: 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 ? ========================================================= BAMARLAL BHAGWANJI AADGAUR (VYAS) - Appellants Versus STATE OF GUJARAT - Respondents ========================================================= Appearance : MS NISHA M PARIKH for Appellant in CR.A. No. 1225 of 2005 Mr. M.J. Buddhbhatti for Appellant in CR.A. No. 1301 of 2005 MR. I.M. PANDYA, LD. APP for Respondent State in both the appeals. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 09/11/2006 ORAL JUDGMENT CR.A/1225/2005 2/48 JUDGMENT 1. This matter was argued at length and was kept today for clarification to be made by Ms. Parikh and for dictation of judgment. Today, Ms. Parikh who appeared for the appellant in Criminal Appeal No. 1225 of 2005 has stated at the Bar that, she can not now appear on behalf of the appellant as she has been appointed as Assistant Government Pleader from 6/11/2006. As it is stated herein above, this matter has been heard at length and today it was kept for dictation and, therefore, only on this count now there is no need to appoint any new counsel for the appellant in Criminal Appeal No. 1225 of 2005. Today this matter was kept only for dictating the judgment. Ms. Parikh had argued the matter at length and her arguments were over. In view of this, the anxiety of Ms. Parikh would be taken care of as the arguments on part of the respondent State was also over and therefore it can not be said that her appearance would be in any way in conflict with the stand of the State. The clarification aspect on some points now need not be advanced by her. The clarification is forthcoming from the record with regard to the possession of the article, and therefore, now only on this point there is no need to adjourn the matter. Hence the judgment is dictated today. 2. The Criminal Appeal No. 1225 of 2005 is CR.A/1225/2005 3/48 JUDGMENT preferred by the appellant – original accused No.1 in Special NDPS Case No. 3 of 2002 and Criminal Appeal No. 1301 of 2005 is preferred by the appellant – original accused no.2 in Special NDPS Case No. 3 of 2002, challenging the judgment & order of conviction dated 17/3/2005 passed by learned Addl. Sessions Judge & Fast Track Court, Nadiad, convicting both the appellants for commission of offence under Section 18 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (herein after referred to “NDPS Act”), and sentenced them to undergo R.I. for a period of 5 years and payment of Rs.50,000=00; and in default of fine, both the accused have been ordered to undergo is also granted. 3. Criminal Appeal No. 1301 of 2005 was admitted by this Court (Coram: J.R. Vora, J) on 16/8/2005, while Criminal Appeal No. 1228 of 2005 was admitted by this Court (Coram: S.R. Brahmbhatt, J) on 22/6/2006, keeping the age of accused no.1 of 80 years and the period of short sentence in mind it was fixed for final hearing in the week commencing from 10/7/2006. 4. As both the appeals are arising out of the common judgment & order dated 17/3/2005 in Criminal Case No. 3 of 2002 they have been proposed to be disposed of together by this common judgment. 5. Fact in short giving rise to the appeals deserve CR.A/1225/2005 4/48 JUDGMENT to be narrated as under :- 5.1On 10/6/2002 when the complainant was discharging his duty as Police Sub Inspector (LCB) Kheda, he along with Police Inspector Shri. P.U. Raolji and Head Constable named in the complaint had gone on patrolling duty. From Kheda when they reached at the place called Alina the complainant received information from secret source that between village Mahuwa and Vatvatiya huge consignment of illicit liquor was likely to be transported. This information was received by him at Alina bus stop. On receiving such information two panch witnesses were called and they were explained about the procedure for nabbing persons indulging into commission of offence under the Prohibition Act. Along with the panch the patrolling party proceeded towards village Mahuda in their government vehicle. The party stopped at the culvert at Raskaviyer canal in waiting for the consignment of illicit liquor which was stated to take place as per the secret information. They spotted two persons coming on the way from Vatvatiya village. They were accused no.1 and 2. On accosting them they got frightened and tried to change their way. On inquiring from them the accused no.1 informed that he was carrying in his sling bag opium. After introducing themselves, the complainant and his companions (members of the raiding party) informed the accused that as their “persons” CR.A/1225/2005 5/48 JUDGMENT were required to be searched whether they would like to be searched in presence of either Mamlatdar or Class-I officer. Both the accused declined to be searched in presence of either Mamlatdar or Class-I officer. The search resulted in to recovery of opium of about 270 grams from accused no.1 and 2oo grams from accused no.2. An amount of Rs.10,600=00 also came to be recovered from the person of the accused No.1. As the opium was recovered the expert from FSL was required to be called for certifying the same and it was also required to be weighed and therefore police constable was sent for fetching the expert and the person for weighing the substance. The FSL expert came from Kheda who opined the same to be opium after examining the substance and on weighing the substance it was noticed that accused no.1 had carried substance weighing 270 grams whereas substance recovered from accused no.2 was weighing 200 grams. 20 grams opium was collected from each of the two quantity of opium and it was placed in a polythene bag and covered it properly in presence of panch witness and it was sealed with the seal of Police Inspector (LCB) Kheda so that same can be send for further examination in FSL. The remaining quantity of opium was also packed in different bags so as to assign them proper identity as to which quantity recovered from whom and this bags were fastened with the seal of Inspector (LCB) Kheda. This procedure of collecting and CR.A/1225/2005 6/48 JUDGMENT sealing was done in presence of panch. The panchnama was drawn at about 28 to 20.30 hours. The complaint was given by the complainant in presence of Police Inspector (LCB) for commission of offence under section 17 of the NDPS Act against the accused. The police party arrested the accused and handed over them along with muddamal in sealed condition to PSO, Mahuwa police station who recorded FIR being C.R. No: I-48/2002 for commission of offence under Section 17 of NDPS Act on 10/6/2002 at 20.30 hrs. 5.2 The investigation was carried out and the police charge sheet came to be filed on 21/8/2202. The charge was framed at exhibit-11 on 7/4/2003 against both the accused for commission of offence under Section 17 of the NDPS Act. The accused have denied the charge and claimed to be tried. The trial commenced. Prosecution has adduced oral and documentary evidence in support of the case. The accused were confronted with the case against them and their statements came to be recorded under Section 313 of Criminal Procedure Code, and accused denied the case against them. The trial court came to the conclusion that the prosecution has successfully established charges against both the accuse and therefore convicted them for commission of offence under Section 18 of the NDPS Act and sentenced them to undergo RI for a period of 5 years and payment of Rs.50,000=00; in default thereof CR.A/1225/2005 7/48 JUDGMENT both of them are to undergo of S.I., for further period of one year. 5.3 Being aggrieved and dissatisfied with this judgment and order of conviction and sentence the accused no.1 and 2 have preferred Criminal Appeal No. 1225 of 2005 and 1301 of 2005 respectively. 6. Learned counsels for the appellants have submitted that the judgment & order of conviction impugned in the present appeals deserve to be quashed and set aside as the trial court has erred in appreciating the documentary as well as oral evidence on record. The counsels have submitted that the order impugned suffers from patent irregularity and infirmity and therefore same deserves to be quashed and set aside. The counsels have taken this Court through the deposition of witnesses and other documentary evidence in support of their contention that the contradictions enlisted in the deposition of witnesses and the material on record the trial court ought not to have passed order of conviction and sentence against the appellants. The counsels for the appellants have drawn this Court's attention to the effect that the trial court has passed the order of conviction and sentence based upon the testimony of police witnesses only. Both the independent panch witnesses No.2 and 3 have not supported the case of the prosecution. The counsels have CR.A/1225/2005 8/48 JUDGMENT also submitted that another prosecution witness no. 4 who had been fetched for weighing muddamal article opium had also not supported the version of prosecution and therefore the order of conviction and sentence impugned in the present appeals deserve to be quashed and set aside. The counsels for the appellants have submitted that the appellants are advanced in age. The applicant / original accused no.1 was aged about 80 years when the trial was going on and appellant / original accused no.2 is also of advanced age of about 70 years t the time of trial and therefore, looking to their age and this being their alleged involved in the incident for the first time, some leniency should be shown in respect of awarding the sentence. This submission is of course by way of an alternative submission on the part of learned counsels. 7. Learned counsels have also submitted that there was non compliance with mandatory provision of Section 50 of the Act in as much as the deposition of complainant – P.W.-1 and P.W-4 the Inspector go to show that section 50 was not absolutely complied with. The sketchy communication to the accused informing them to be searched either in presence of Mamlatdar or in presence of Class -I officer can not be said to be adequate communication so as to make aware the accused about their right to have them searched either in presence of Magistrate or in CR.A/1225/2005 9/48 JUDGMENT presence of a gazetted officer. The counsels for the appellants have also submitted that the deposition of PW-7, PW-8 and PW-9 would show that the muddamal article no.3 & 4 which were required to be sent to the FSL in a proper condition had not been sent in due compliance with provisions of law. The counsels have heavily stressed on the fact that concerned muddamal was recovered on 10/6/2002 and delivered to the FSL, Ahmedabad only at 11.00 O' clock on 13/6/2002. the time gap from the date of its collection and its delivery to the FSL needs to be properly explained and when there is a yawning gap in explaining the same the possibility of it being tampered can not be ruled out. In other words it can well be said that the prosecution to that extent has not established the guilt of the accused and therefore, benefit of doubt ought to have been accorded to the accused. 8. Learned counsels have also submitted that the judgment & order of conviction and sentence being erroneous on account of failure in noticing the glaring infirmities in the case of the prosecution, same deserves to be quashed and set aside. 9. Shri. Pandya, learned APP appearing on behalf of the Respondent State has submitted that the judgment & order of conviction & sentence deserve to be upheld. Shri. Pandya has submitted CR.A/1225/2005 10/48 JUDGMENT that the testimony of the panch witnesses and weighing man go to clearly show that there was absolute compliance with all the mandatory provisions of the NDPS Act. The factum of recovery of contraband article namely opium from the person of the accused have been proved. The amount recovered from person of accused no.1 coupled with the fact that opium was found in large quantity than the small quantity as prescribed under the Act go to show they were dealing in trafficking of opium. This being serious offence they do not deserve lenient treatment from any quarter. Shri. Pandya has submitted that the time gap of 2 ½ days in sending the sample to FSL is explained properly by the prosecution. The testimony of prosecution witness no.2, No. 7, 8 and 9 clearly show that the muddamal was received in a sealed condition which was kept in the police station in a sealed condition and it was carried by the concerned person also in a sealed condition and delivered to FSL and certificate of FSL indicating that the FSL had received the muddamal in sealed condition rules out any possibility of the article being tampered with. In view of this it can well be said that the order of conviction and sentence deserve to be upheld. 10. Shri. Pandya, learned APP has further submitted that contradictions pointed out in the case of the prosecution can not be said to be so major and material, as to affect the very basis CR.A/1225/2005 11/48 JUDGMENT of the case of the prosecution. The minor contradictions are always likely to be noticed due to time gap but on the basis of those contradictions the order of conviction and sentence can not be said to be vitiated. Shri. Pandya has further submitted that the fact remains that all the 3 independent witnesses namely panch witness no. 2 and 3 and prosecution witness no.4 have not supported the case of the prosecution but they were declared hostile and therefore their version needs to be viewed accordingly. Shri. Pandya has submitted that from the testimony of prosecution witness no.4 it can well be culled out that the raiding party was present at the place of incident. The accused were found to be sitting in a police van and the contraband goods was also present. Therefore, it can not be said that the prosecution case was not established. Shri. Pandya has submitted that the conviction in such a serious offence needs to be upheld even on the testimony of police witness as they have given absolutely impeccable evidence and were of sterling quality. In absence of any plea of animosity against any of the police witnesses it can not be said that police witnesses testimony deserve to be watered down on a spacious plea of they being interested parties. Shri. Pandya has submitted that, in view of the gravity of the offence the alternative plea of counsels of the appellants that the sentence be reduced also deserves to be rejected and the appeal itself be dismissed as having no merits. CR.A/1225/2005 12/48 JUDGMENT 11. This Court has heard learned counsels of respective parties at length and perused the documents accompanying the appeals and also the record & proceedings of Special NDPS Case No. 3 of 2002 received from the trial court. 12. The appellants / original accused no.1 and 2 had been charged for commission of offence under section 17 of the NDPS Act as they were found with opium on 10/6/2002 on the way near Vatvatiya/Muwada. 13.The prosecution has examined various witnesses for establishing their case against the accused. The brief discussion of the evidence led by the prosecution deserves to be set out in order to appreciate the rival contentions of respective counsel of the parties. P.W. NO.1: The Police Sub Inspector (PW No.1) has been examined and his testimony is recorded at exhibit-16. This witness has stated that while discharging his duties as Police Sub Inspector Local Crime Branch (LCB) Kheda on 10/6/2002, he, along with Inspector P.U. Raolji, Head Constable Umedbhai Ramjibhai, Head Constable Yakubmiya, Police constable Popatbhai Prabhatbhai and Mafatbhai Holidaymaker etc had reached Alina via Mahudha This patrolling party had reached village Alina in a Government CR.A/1225/2005 13/48 JUDGMENT vehicle. At Alina this witness received information that transfer of large consignment of illicit liquor was to take place at the boarder of village Marisa and Privatively. This information was received near the bus stand of village Alia. The Panchas were called from nearby place and they were explained that they were to act as panch witness in respect of watch to be arranged on information of transfer of illicit liquor. The Panchas had shown willingness to act as Pinchas. The entire patrolling party along with pans witnesses have started towards village Marisa. On the katchha road near culvert of Raskaviyer they had arranged the watch. Before arranging the watch the panchas and patrolling party each other had taken search of their person so as to ensure that no one was carrying any offending and or contraband articles. They saw two persons walking near the boarder of village Mahisa on the way of village Vatvatiya. One person was carrying sling bag on his shoulder and another person had put on waist sleeveless jacket and dothi. As their movement appears to be suspicious they were intercepted. Both the men feared and therefore they could not reply properly. On this police party introduced themselves as police and as the first man carrying sling bag had said that he was carrying opium. Both the men were informed that as their search was to be taken, whether they would like to have themselves searched in presence of Mamlatdar and or Class-I officer. Both these men CR.A/1225/2005 14/48 JUDGMENT stated that they were not interested in facing such search in presence of either Mamlatdar or Class-I officer. On searching the accused No.1 i.e. Bamarlal Bhagwanji Aadgaur Vyas, from the sling bag, one dhoti and a polythene bag wrapped in the dhoti was found. The polythene bag contained soft black substance weighing about 200 grams. This substance on smelling appeared to be opium. On further searching of the said person, currency notes of Rs.10,600=00 from the fold of his dhoti tied on his waist were recovered. Another person who had put on sleeveless jacket and dhoti was also searched and from his front pocket of jacket 250 grams of black substance was found which also on smelling appeared to be opium. As the opium like substance was found it was required to be ascertained as to what was the exact substance. Police Constable Jabirhusain was sent for fetching FSL expert form Kheda and also some one with weighing scale for weighing material form village Mahisa. At about 19.30 hrs FLS expert from Kheda and the weighing person Gopalbhai Kantilal (P.W.No.4) came to the place. The FSL expert after carrying out the scientific examination of the stuff opium preliminary opined it to be opium. The witness No.4 weighed the substance and it was noticed that the accused no.1 was carrying 270 grams of opium and accused no.2 was carrying 200 grams of opium. The value thereof was taken to be Rs.9400=00. This witness has stated that after taking 20 grams of opium from each of the accused and CR.A/1225/2005 15/48 JUDGMENT packing in the polythene bag which was also in turn placed into plastic cover, the slip containing signature of panch and Police Inspector were placed therein and the remaining quantity of opium was also packed and the requisite slips bearing signature of panch and Police Inspector (LCB) were placed in the same. The cloth bags were sealed and the seal of Police Inspector, LCB Kheda was affixed thereon. The panchnama was drawn from 18.00 to 20.30 hrs in the headlight of Government vehicle. Against both the accused this witness lodged complaint under provision of Section 17 of NDPS Act 1985 in presence of Police Inspector, LCB Kheda. The complaint was shown to the accused who identified his signature and stated that it was of same complaint and it came to be exhibited at exhibit-17. This witness also identified both the accused and said that they were the same persons who were present on the date and place of offence. This witness has stated that as the talk of Mahisa was going on, through mistake he said that the weighing man was called from Mahisa. In fact he was called from Alina. The muddamal article in sealed packet was also opened in the court and this witness identified the same and signature of the slip which was recovered from the bag. Article no.1 muddamal opium was recovered from accused no.1, the slip was given exhibit-18. Muddamal article no.2 which was also in sealed packet was opened in the court. The slip and signatures were identified. That article no.2 opium was CR.A/1225/2005 16/48 JUDGMENT recovered from accused no.2. Accused no.2 was also identified by this witness and this witness also verified that he was the same person. The slips recovered form accused no.2 is given exhibit-19. The slip recovered from second bag was given exhibit-20. This witness has supported entirely the case of the prosecution. This witness has also identified articles of the accused. In cross examination this witness has denied the suggestion that panchas were available for taking sample from the place of incident. He has admitted that the panchas were summoned from Alina village only. This witness has denied the suggestion that panch witnesses and police patrolling party have not taken each others search. He has admitted that when muddamal is found the superior officers are to be informed. This witness has denied that it was not correct that the accused were not asked as to whether they were likely to be searched in presence of Mamlatdar or Class-I officer. This witness has on his own stated that with him Police Inspector and he was gazetted officer. This witness has stated that this substance could be said to be opium on smelling the same. This witness has stated that as he has also investigated earlier such cases he is aware and capable of telling whether substance is opium or not. This witness has stated that the police personnel who had gone to fetch the FSL officer had gone in a Government vehicle who had informed FSL office from Alina on telephone that FSL officer had to come to the place of offence. CR.A/1225/2005 17/48 JUDGMENT He has admitted that Jabirhusain was the one who had gone for calling FSL and weighing man. He has stated that he is not remembering whether the private vehicle was used or not. He has admitted that FSL officer had reached 19.30 from Kheda. Witness say that FSL officer had verified substance. This witness had stated that on that day whether weighing scale was made of steel or iron can not be said. He says that weighing scale was brought by witness No.4. He says that opium was weighed in presence of panch and police party. This weighing man has a grocery shop at Alina. Weighing units were made of iron. He admits that weighing units below 50 grams are usually made of brass. He denied the suggestion that grocery shop keeper would not have weighing scale below units of 50 grams. He has stated on his own that weighing man also brought weighing units. He denied that weighing man never come to the place of offence. In cross conducted on behalf of accused no. 2, this witness has stated that looking to extract of log book, entries were note