CR.A/982/2000 1/41 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 982 of 2000 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 ? ================================================= KANUBHAI HAMIRBHAI DHANDHAL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS BANNA S DUTTA for Appellant(s) : 1, MR KT DAVE, Additional Public Prosecutor for Opponent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ CR.A/982/2000 2/41 JUDGMENT Date : 21/12/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K. A. PUJ) 1. The appellant – original accused No.1 has filed this appeal against the judgment and order of the learned Additional Sessions Judge, Gondal dated 27.9.2000 in Sessions Case No.95 of 2000 (Old Sessions Case No.247 of 1998) convicting the present appellant / original accused No.1 for the offence punishable under Sections-18 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'the Act') and sentencing him to suffer R.I for a period of 10 years and fine of Rs.1 lac and in default thereof to undergo S.I for six months. 2. The case of the prosecution as revealed in the complaint and as unfolded during the course of trial, is briefly stated as under:- CR.A/982/2000 3/41 JUDGMENT 3. The combing operation was carried out within the limit of Bhadla Police Station of Jasdan Taluka between 12.9.1998 at 11:00 a.m. To 13.9.1998 at 6:00 a.m., as per the direction of District Superintendent of Police (D.S.P.) Rajkot (Rural). P.S.I. Mr.R.S.Zala, in the company of Head Constable – Mr.Juvansinh, Head Constable – Mr.Rambhai, Police Constable - Mr.Jasubhai and Police Constable – Mr.Sejpalsinh, has checked Dahisara Bus Station within the area of Bhadla Police Station on 13.9.1998 at about 2:00 a.m and at that time, P.S.I Mr.R.S.Zala received an information that accused No.1 – Manubhai Hamirbhai was engaged in the illegal business of distilling country made liquor and of selling the same at his residence. On receiving such information, two panchas were called and raid was carried out at about 2:30 a.m on 13.9.1998 by P.S.I – Mr.R.S.Zala. The present appellant – original accused No.1 was found to be present in the residential house CR.A/982/2000 4/41 JUDGMENT and on interrogation, he was found to be under the influence of alcohol and, therefore, he had been arrested for the offence punishable under Section-66(1)(b) of Bombay Prohibition Act in the presence of panch witnesses at about 2:45 a.m and thereupon, a complaint for the said offence was lodged by P.S.I – Mr.R.S.Zala at about 3:10 a.m in Bhadla Police Station and accordingly, C.R. No.5011/1998 was registered against the present appellant – original accused No.1 – Kanubhai Hamirbhai of village Dahisara in Bhadla Police Station. 4. On the same day, Head Constable – Mr.R.V.Rana of Bhadla Police Station was entrusted the duty of night combing operation in village Kamalpur within the jurisdiction of Bhadla Police Station and accordingly, Head Constable – Mr.R.V. Rana, in the company of Police Constable Mr.Jayendra Narshibhai had visited the village Kamalpur. During the CR.A/982/2000 5/41 JUDGMENT said night combing operation, they had checked Kamalpur Bus Station at about 2:00 a.m on 13.9.1998 and at that time, they found one person running away on seeing the police staff and, therefore, he was caught by Head Constable – Mr.R.V.Rana and he was interrogated about his presence at Kamalpur Bus Station during the late night hours, but the said accused could not give any satisfactory explanation about his presence. The said person was – Jilubhai Bhanabhai – original accused No.4 in Sessions Case No.95 of 2000. He was arrested for the offence punishable under Section-122(c) of the Bombay Police Act and thereupon Head Constable – Mr.R.V.Rana had lodged a complaint in Bhadla Police Station for the offence punishable under Section-122(c) of the Bombay Police Act, against the said Jilubhai Bhanabhai being CR No.3024 of 1998. 5. It is also the case of the prosecution that CR.A/982/2000 6/41 JUDGMENT during the course of night combing operation, Arjunbhai Nandram Joshi – the original accused No.3 in Sessions Case No.95 of 2000 was found to have been present at late night hours near Dahisara Bus Station and, therefore, P.S.I. Mr.R.S.Zala interrogated the Arjunbhai Nandram Joshi about his presence, but he could not give any satisfactory explanation about his presence and, therefore, he was arrested at about 3.45 a.m from village Dahisara and thereupon P.S.I - Mr.R.S.Zala had lodged a complaint against him for the offence punishable under Section- 122(c) of the Bombay Police Act at about 4.15 a.m in Bhadla Police Station bearing CR No.3025 of 1998. 6. It is also the case of the prosecution that Munnabhai Abdulbhai Path – original accused No.2 in Sessions Case No.95 of 2000 was also found to be present near Dahisara Bus Station at about 3.15 a.m on 13.9.1998 and, CR.A/982/2000 7/41 JUDGMENT therefore, P.S.I – Mr.R.S.Zala arrested him for the offence punishable under Section- 122(c) of the Bombay Police Act and thereupon, lodged a complaint for the said offence in Bhadla Police Station at about 4.00 a.m on 13.9.1998 bearing CR No.3026 of 1998. 7. During the course of inquiry and interrogation of these accused persons, it was found that the original accused No.2 - Munnabhai Abdulbhai Path disclosed the information that he and accused No.3 i.e Arjunbhai Nandram Joshi had gone to village Dahisara to meet the present appellant – original accused No.1 for the purpose of selling opium to the present appellant and they have also sold 1.250 kgs opium to the present appellant and accused No.4 and has received Rs.33,000/- by way of sale proceeds of opium and they have kept the said contraband opium and amount of sale proceeds CR.A/982/2000 8/41 JUDGMENT in the house of present appellant. On receipt of such information, Assistant Superintendent of Police – Mr.Manoj Sashidhar posted an entry in the station diary of Bhadla Police Station about the information received from the original accused Nos.2 and 3 at about 14.30 hours and, thereafter, the said information was communicated to J.M.F.C. Jasdan and D.S.P. Rajkot (Rural) by a special messenger and, thereafter, necessary arrangement was made for securing the presence of panch witnesses in Bhadla Police Station and person for weighing the contraband goods and accordingly, two panch witnesses, namely, Bababhai Bhaichandbhai Patel and Subhashbhai Premjibhai Kumbhar had arrived in Bhadla Police Station and service of Nalinkumar Amrutlal Soni was secured for the purpose of weighing the contraband goods which might be found during the search. Preliminary panchnama of the formalities carried out in Bhadla Police Station was CR.A/982/2000 9/41 JUDGMENT drawn and, thereafter, the raiding party had proceeded in police jeep from Bhadla Police Station towards Dahisara village. On reaching to village Dahisara, Police Jeep was stopped as per the instruction of the present appellant and thereafter, all the four accused, raiding party and two panch witnesses entered in the house. They found one empty wooden cupboard in the room and one suitcase was lying over the said wooden cupboard. The contraband opium and amount of sale proceeds have been kept in the suitcase and, therefore, the said suitcase was opened in the presence of panch witnesses. On opening the said suitcase, black coloured substance wrapped in plastic which was resembling to opium was found from the said suitcase. Mr.Nalinkumar Amrutlal Soni was asked to weigh the said contraband goods and on weighing the said contraband goods it was found to be 1.032 kgs. Out of the said quantity of opium, 10 gram opium was CR.A/982/2000 10/41 JUDGMENT separated for the purpose of sampling and the said quantity of opium was packed in small plastic bag and signatures of two panch witnesses were obtained on the slip and the said slip was kept in the said small plastic bag and said plastic bag was packed in a cotton bag and, thereafter, again slip bearing the signatures of panch witnesses was pasted over the said cotton bag and it was sealed by sealing wax having the seal of P.S.I. Bhadla. The same procedure was followed with regard to the remaining quantity of opium. Currency notes found were also sealed and attached in the presence of the witnesses. The suitcase was attached. All the four accused were arrested for the offence punishable under Sections-18, 22 and 25 of the N.D.P.S Act at about 18.00 hours on 13.9.1998 and second part of the panchnama was also completed at about 18.00 hours. 8. Mr.Manoj Sashidhar – Assistant CR.A/982/2000 11/41 JUDGMENT Superintendent of Police has, thereafter, lodged the complaint against all the four accused at Bhadla Police Station for the offence punishable under Sections-18, 22 and 25 of the N.D.P.S Act and accordingly the offence bearing CR No.5012 of 1998 was registered against all the four accused. 9. Pursuant to the registration of the offence, the investigation was put into motion. During the course of investigation, statements of the witnesses were recorded, panchnama of scene of offence was prepared, muddamal articles were recovered by drawing panchnama which were sent to F.S.L. for chemical analysis. After obtaining F.S.L. Report, since sufficient incriminating evidence was found against all the four accused, they were charge-sheeted in the Court of learned Additional Sessions Judge, Gondal. The learned Additional Sessions Judge, Gondal framed charge against the accused for CR.A/982/2000 12/41 JUDGMENT commission of the offence punishable under Sections 18 and 29 the Act. 10. The charge was read over and explained to the accused. As the accused have not pleaded guilty to the said charge, they were put to trial and tried by the learned Additional Sessions Judge, Gondal in Sessions Case No. 247 of 1998 (New Sessions Case No.95 of 2000). 11. To prove the culpability of the accused, prosecution has in all examined as many as 10 witnesses, details of which are as under: Sr. No. Exh. No. Particulars 01. 12 P.W. 1 – Nalinkumar Amrutlal Soni 02. 13 P.W. 2 – Babubhai Kathabhai 03. 14 P.W. 3 – Dhirajbhai Kalyanbhai 04. 15 P.W. 4 – Bababhai Bhaichandbhai 05. 19 P.W. 5 – A.S.P. Mr.Manoj Sashidhar 06. 30 P.W. 6 – Head Constable Juvansinh Balubha CR.A/982/2000 13/41 JUDGMENT Sr. No. Exh. No. Particulars 07. 32 P.W. 7 – Police Constable Trikamdas Nanalal 08. 33 P.W. 8 – Head Constable Raisang Babarbhai 09. 43 P.W. 9 – C.P.I. Mr.Jitendra Bahadursing 10. 45 P.W. 10 – P.S.I. Mr.Ranjitsing Shivubha Zala. 12. Prosecution has also produced several documents and relied upon the contents of the same, details of which are as under: Sr. No. Exh. No. Type of Evidence 01. 16 Panchnama. 02. 20 Complaint. 03. 21 Forwarding letter. 04. 22 Letter to R.F.S.L., Junagadh. 05. 23 Resolution U/s.42 of N.D.P.S.Act. 06. 24 Report to J.M.F.C, Jasdan and D.S.P. Rajkot (Rural). 07. 25 Station Diary Entry No.12 & No.13 at 14.30 hour. 08. 26 Station Diary Entry No.14 & No.15. 09. 27 Report U/s.58 of Cr.P.C. 10. 28 Report to Sessions Court, Rajkot. 11. 34 Station Diary Entry No.17. 12. 35 Complaint U/s.66(1)(b) against accused No.1. 13. 36 Station Diary Entry. 14. 37 F.I.R. U/s.122(c) against accused No.4. CR.A/982/2000 14/41 JUDGMENT Sr. No. Exh. No. Type of Evidence 15. 38 F.I.R. U/s.122(c) against accused No.3. 16. 39 Station Diary Entry. 17. 40 F.I.R. U/s.122(c) against accused No.2. 18. 41 Station Diary Entry. 19. 46 Panchnama Seizure of vehicle. 20. 47 Report to J.M.F.C, Jasdan. 21. 48 Report from R.F.S.L., Junagadh. 22. 49 Report of R.F.S.L., Junagadh. 23. 50 Report of R.F.S.L., Junagadh. 13. After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Gondal, explained all the four accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements, as required under Section 313 of the Code. In their further statements, the accused denied the case of the prosecution by reiterating that they have been falsely implicated. 14. On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by CR.A/982/2000 15/41 JUDGMENT the prosecution, the learned Additional Sessions Judge, Gondal has acquitted original accused Nos.2 to 4. He, however, has held that the prosecution has established beyond reasonable doubt that the charge levelled against the present appellant - original accused No.1 was proved and, therefore, the appellant – original accused No.1 was held guilty of the offence punishable under Sections- 18 and 29 of the Act. Thereafter, the learned Additional Sessions Judge, Gondal heard the original accused No.1 and his advocate on sentence and looking to the gravity of the offence committed by the accused No.1, and looking to the circumstances, the accused No.1 was sentenced to suffer rigorous imprisonment of 10 years and fine of Rs. 1 Lac and in default thereof, simple imprisonment of six months for the offence punishable under Sections -18 and 29 of the Act. CR.A/982/2000 16/41 JUDGMENT 15. Ms. Banna S. Dutta, learned advocate appearing for the appellant – original accused No.1 has submitted that the learned Additional Sessions Judge, Gondal has committed an error on the face of the record by convicting the appellant – original accused No.1 for the offence punishable under Section 18 of the Act. The learned Additional Sessions Judge, Gondal has misdirected himself in appreciating the evidence placed on record. The learned Additional Sessions Judge, recorded the findings which are not based on the evidence on record. The learned Sessions Judge should have appreciated the evidence and should have also held that the prosecution has failed to prove the offence against the appellant – original accused No.1 beyond reasonable doubt. The learned Additional Sessions Judge has failed to consider the mandatory provisions of Sections 42, 50, 52, 55 and 57 of the Act. She has further submitted that CR.A/982/2000 17/41 JUDGMENT the prosecution witnesses have tendered contradictory and unreliable evidence and therefore, no reliance can be placed on their evidence. She has further submitted that the government servant have been selected as panch witnesses of the raid and, therefore, they were not independent witnesses and no reliance can be placed on the evidence of the said witnesses. She has further submitted that the alleged disclosure statement made by two accused and alleged disclosure in pursuance to such statement, are clearly in violation Section-27 of the Evidence Act and, therefore, no reliance can be placed on such disclosure statement. She has further submitted that the alleged statement was made by one of the accused and therefore the said statement could not bind other co-accused and, therefore, other accused could not be held liable on such statement of one of the accused. She has further submitted that the prosecution has miserably failed to prove CR.A/982/2000 18/41 JUDGMENT that the raided premises was belonging to the present appellant – original accused No.1 and, therefore, conscious possession of the contraband goods and alleged recovery of the same could not be proved by the prosecution. She has further submitted that there were material contradiction about sealing of the contraband article after seizure. The sample was not first accepted by R.F.S.L., Junagadh and, therefore, it creates serious doubt in prosecution version and, therefore, possibility of tampering with the seal cannot be ruled out. 16. She has further submitted that the sealing procedure adopted by the raiding party and / or the investigation agency is very defective and the slip duly signed by the panchas as well as PI were not affixed, as required under law and in accordance with the judgments delivered by this Court. CR.A/982/2000 19/41 JUDGMENT 17. In support of the above submission, Ms. Banna Dutta, the learned advocate of the appellant – original accused No.1 has relied on the decision of this Court in the case of Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas V/s. State of Gujarat, 2006 (1) G.L.H. 409 wherein after considering earlier three decisions of this Court, namely, (i) Chandrakant Nagindas Modi V/s. State of Gujarat, 1989 (I) FAC 153, (ii) unreported decision dated 17.08.2001 rendered in Criminal Appeal No. 323 of 1996 filed by Jitendra @ Sanjaykumar Suryakant Desai against State of Gujarat and (iii) decision dated 07.05.2002 rendered in Criminal Appeal No. 287 of 1999 filed by Ganpatram Punmaram Vishnoi against State of Gujarat, the Court held that as per the law laid down by this Court, the slips bearing signatures of the panch-witnesses should be affixed on samples and thereafter seals should be applied so that if any attempt is made to tamper with CR.A/982/2000 20/41 JUDGMENT sample, the slips affixed would get torn. On re-appreciation of evidence, the Court was satisfied that correct and fool-proof procedure of sealing was not resorted to by the Investigating Officer and possibility of tampering with muddamal was not ruled out at all. The Court has evaluated such deficiency in light of other discrepancies brought on record of the case and held that it was difficult to sustain conviction of the appellant – accused. The appeal was accordingly allowed and the appellant – accused was ordered to be released from jail forthwith unless his presence in jail was needed with reference to any other case. 18. Mr. K.T.Dave, the learned Additional Public Prosecutor appearing for State of Gujarat, on the other hand, supported the order and judgment of the learned Additional Sessions Judge, Gondal and submitted that there was no violation of any statutory CR.A/982/2000 21/41 JUDGMENT provision and all necessary compliances were made by the raiding parties and/or investigating agency and there was no substance in the argument that the provisions contained in Sections 42, 52, 55 and 57 of the Act were violated. So far as sealing procedure is concerned, he has submitted that as per the panchnama drawn at the site, proper procedure has been adopted and it cannot be said that sealing procedure conducted by the raiding party was defective. 19. We have considered the submissions advanced by Ms. Banna S. Dutta, learned advocate appearing for the appellant – original accused No.1 and Mr. K.T.Dave, learned Additional Public Prosecutor appearing for State of Gujarat at length. We have also undertaken a complete and comprehensive exercise of appreciating all vital features of the case and the entire evidence on record with reference to broad CR.A/982/2000 22/41 JUDGMENT and reasonable probabilities of the case. We have also gone through the entire testimonial collections. We have applied our mind to the impugned judgment and order passed by the learned Additional Sessions Judge, Gondal, convicting the appellant - original accused No.1. 20. Though several contentions were raised before the Trial Court and before this Court, we confine ourselves to deal with the strong protest lodged against sealing procedure adopted by the prosecution. Even otherwise, we are not impressed by the other contentions raised by Ms. Banna Dutta, the learned advocate of the appellant – original accused No.1. The main grievance was that the identity of the muddamal and the samples sent to the F.S.L. is not established. There was a possibility of tampering with the contents of the samples. The samples were not kept in safe and proper custody and the sealing CR.A/982/2000 23/41 JUDGMENT procedure was absolutely defective. This contradiction of the evidence in the witnesses with regard to the sealing procedure and the possibility of the tampering of the contents of sample cannot be ruled out. 21. To examine and appreciate the aforesaid contention, relevant provisions in the Act or Rules made thereunder, touching this subject matter are required to be looked into. 22. Section 55 of the Act deals with Police to take charge of articles seized and delivered. It provides that Officer in charge of police station shall allow any officer depositing the seized articles to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in- charge of the police station. Except this, no provision seems to have been made in the CR.A/982/2000 24/41 JUDGMENT present Act and Rules framed thereunder regarding mode of taking and sealing of the sample, mode of assigning the same to chemical examiner and their chemical examination or even touching the above matters. However, the Central Government issued Standing Instruction / Orders. Standing Order No. 1/88 dated 15.03.1988, Standing Order No. 2/88 dated 11.04.1988 and Standing Order No. 1/89 dated 13.06.1989 are required to be looked into. Standing Instruction 1/88 speaks about procedure regarding drawl, storage, testing and disposal of samples from seized narcotic drugs and psychotropic substances. Standing Order No. 2/88 deals with receipt, custody, storage and disposal of seized/confiscated narcotic drugs and psychotropic substances. Standing Order No. 1/89 relates to general procedure for sampling, storage etc. Standing Instruction / Order No. 1/88 inter alia provides as under :- CR.A/982/2000 25/41 JUDGMENT (i) If the drugs seized are found in packages/containers, the same should be serially numbered for purpose of identification etc. (ii) Samples must be drawn on the spot of recovery in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drug is recovered. (iii) The quantity to be drawn in each sample should be 5 gms in respect of all narcotic drugs and psychotropic substances except in the cases of opium, ganja and charas, hashish where a quantity of 24 gms in each case is required. The same quantity should be taken for the duplicate samples also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. (iv) In the case of seizure of a single package/container one sample in duplicate is to be drawn. In case of seizure of more than one packages/container one sample in duplicate from each package/container should be drawn. (v) All samples must be drawn and sealed in the presence of the accused, panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose possession the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and duplicate of each sample. CR.A/982/2000 26/41 JUDGMENT (vi) The sample in duplicate should be kept in heat sealed plastic bags. The plastic bags should be kept in a paper envelope and properly sealed. Such sealed envelope should be marked as original and duplicate. (vii) The samples should be dispatched to the respective laboratories under the cover of a Test Memo which shall be prepared in triplicate in proforma NCB-1. 23. Despite the aforesaid Standing Orders / Instructions, the proper procedures are not being followed by the Investigating Agency and cases have come up before the Court. In the case of Chandrakant Nagindas Modi V/s. State of Gujarat, 1989 (I) FAC 153, this Court has taken the view that the muddamal was not properly sealed and there was all possibility of substituting the substance. Coupled with this, the fact that the muddamal remained with the police for more than two months raises a doubt. The prosecution has, therefore, failed to establish the offence beyond reasonable doubt against the appellant. The Court further held that this CR.A/982/2000 27/41 JUDGMENT aspect has escaped the notice of the Learned Trial Judge and in view thereof, the Court allowed the appeal and acquitted the appellants. 24. In Criminal Appeal No. 323 of 1996, in the case of Jitendra @ Sanjaykumar Suryakant Desai V/s. State of Gujarat decided on 17.08.2001, the Court has taken the view that the contention regarding laxity in following the procedure relating to sealing of the seized contraband articles