CR.A/729/1993 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 729 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= BHANABHAI G PARMAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HV DARJI FOR MR YOGESH S LAKHANI for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 17/01/2008 ORAL JUDGMENT 1. The appeal arises out of a judgement and order dated 31.5.1993 rendered by learned Special Judge, Amreli in Special Case No. 7/1991. CR.A/729/1993 2/12 JUDGMENT 2. The appellant was the original accused charged with commission of offence punishable under Section 20(b) of the Narcotics Drugs & Psychotropic Substances Act (here-in-after referred to as “the NDPS Act”). 3. As per the prosecution, the raiding party carried by the complainant had by chance happened to intercept the appellant on the night of 12.2.1991 at about 00:45 hours. The appellant was found to be carrying 3kg of Ganja Plants with flowers and fruits. He was thus charged with offence punishable under Section 20(b) of the NDPS Act. Learned Special Judge convicted the appellant and sentenced him to three years of rigorous imprisonment and also imposed fine of Rs. 5,000/-. 4. Bhagvanbhai Nondhanbhai-PW1(exh.12) was the Panch witness who had signed the panchnama of seizure of the drug(Ganja) and sealing of a sample thereof for the purpose of laboratory analysis. This Witness however, turned hostile and did not support the prosecution. Similarly is the case with one Dilavarhussen Iqbalhussen- PW2(exh.14). He was also the Panch witness of the same panchnama. He also turned hostile. 5. Bhupendra Ratilal Patel-PW3(exh.16) was the Investigating Officer. In his deposition, he stated that on 12.2.1991, he was discharging CR.A/729/1993 3/12 JUDGMENT duty in the Task Force in Amreli District. The Task Force was assigned the job of enforcement of prohibition law, Narcotics and anti gambling provisions. On 12.2.1991, he along with other staff members and the Panch witnesses had stationed themselves on Kadodara Malshram Road for detecting prohibition offence. At about 12 O' clock in the midnight of 12.2.1991, one person came towards the main road from a Kachchha road. He therefore, approached the person cautiously. They saw a cloth sack on the back of the person. They stopped him and opened the bag and found that there were some green plants in his sack. Upon smelling the plants, he found same were Ganja. Upon weighing the plants, same came to about 3kg. Upon being inquired, the appellant stated that he is carrying the plants for selling since following day happens to be Shivratri. He could not produce any permit to possess the drugs. 100 gms of this drug was sealed in a cloth bag and appellant was apprehended at about 00:45 hours. Before searching the accused was asked whether he would wish to be searched in presence of a Executive Magistrate. Accused however, refused. He described the manner in which Panchnama was drawn and the complaint was recorded. 5.1 In the cross examination, he could not state as to who else formed the raiding party. He could not state as to how many raids he CR.A/729/1993 4/12 JUDGMENT carried out on 10th and 11th February. He agreed that he had not acted on prior information. He denied the suggestion that the accused was being falsely involved. 6. Gamanbhai Ramjibhai-PW4(exh.20) was also the police witness. He was the Head Constable at the relevant time. He had recorded the complaint against the accused. 7. Other than these witnesses, no other witness were examined by the prosecution. 8. Appearing for the appellant, learned advocate Shri Darji for Shri Lakhani submitted that the learned trial Judge committed grave error in recording the conviction against the appellant. 8.1 It was submitted that procedure as laid down under Section 50 of the NDPS Act was not followed. No opportunity was given to the accused for being searched in presence of the Executive Magistrate. It was contended that requirement of Section 50 are mandatory in nature and contravention thereof would be fatal. It was contended that in the Panchnama also there was no mention that the appellant was made an offer of being searched in presence of the Magistrate. It is only through the evidence of the Investigating Officer that same is sought to be suggested. CR.A/729/1993 5/12 JUDGMENT 8.2 Reliance was placed on decision of the Apex Court in case of State of Punjab v. Balbir Sing reported in AIR 1994 Supreme Court 1872 to contend that contravention of Section 50 of the NDPS Act would be fatal to prosecution. 8.3 It was contended that investigation relied entirely on police witnesses. Panch witnesses had turned hostile and did not support the prosecution. It would be unsafe to rely on sole testimony of the Investigating Officer to convict the accused. 8.4 It was contended that even the investigation was conducted in a prejudicial manner. The complainant was the Investigating Officer and he was the sole eyewitness on the basis of whose account the accused was sought to be prosecuted. It was contended that bias investigation of such an officer cannot form basis for conviction. Reliance in this regard was placed on decision of the Apex Court in case of Bhagwan Singh v. The State of Rajasthan reported in AIR 1976 Supreme Court 985, wherein it was observed that there was an infirmity in the investigation since the investigation was by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the First Information Report and such infirmity is bound to reflect on the CR.A/729/1993 6/12 JUDGMENT credibility of the prosecution case. Reliance was placed on the decision of Megha Singh v. State of Haryana reported in AIR 1995 Supreme Court 2339, wherein it was observed that the Head Constable being the complainant should not have proceeded with the investigation of the case. But he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 of the Criminal Procedure Code. It was observed that such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. For the same purpose, reliance was also placed on decision of Learned Single Judge of Rajasthan High Court in 1993 Criminal Law Journal 3716. 8.5 It was next contended that charge against the appellant was that he was carrying cannabis plants. It was not mentioned that plants had flowering or fruiting tops. It was therefore, submitted that the appellant could not have been convicted under Section 20(b) of the NDPS Act which provides for punishment for possessing, selling, etc. of cannabis. My attention was drawn to Clause (iii) and (iv) of Section 2 of the NDPS Act which define cannabis and cannabis plant respectively. 8.6 Basing reliance on the decision of this Court in the case of State of Gujarat v. CR.A/729/1993 7/12 JUDGMENT Talabhai Versibhai reported in 2000(1) GLH 535, it was contended that possession of cannabis plant is not an offence under the NDPS Act. 9. On the other hand, learned APP Ms. Hansa Punani supported the decision under challenge. She submitted that through reliable evidence the prosecution had succeeded in establishing the charge against the appellant. It was contended that Section 50 of the NDPS Act would not apply in the present case since it was not searching a person but a bag which is not governed under the provisions of Section 50. Reliance was placed on following decisions of the Apex Court : 1) Kalema Tumba v. State of Maharashtra and another reported in (1999) 8 Supreme Court Cases 257. 2) Kanhaiya Lal v. State of M.P. reported in (2000) 10 Supreme Court Cases 380. 3) State of HP v. Pavankumar reported in (2005) Supreme Court Cases 350. 10.Before coming to the assessment of evidence on record a few technical issues need to be dealt with. It is not in dispute that the cannabis plant alleged to have been found from cloth sack which the appellant was carrying. Searching of the bag therefore, would not require following CR.A/729/1993 8/12 JUDGMENT of the procedure laid down under Section 50 of the NDPS Act as observed by the Apex Court in the decision cited by learned APP. Apparently, it was not from the body of the person that cannabis were detected. It was only in a cloth sack which he was carrying with himself. 11.With respect to the commission of the offence under the NDPS Act, it can be seen that clause(iii) of Section 2 of the NDPS Act defines term cannabis as follows : (iii) “cannabis (hemp)” means - (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin knows as hashish oil or liquid hashish; (b)ganja, that is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanies by the tops), by whatever name they may be knows or designated; and (c)any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom:” 11.1 Clause(iv) of Section 2 of the NDPS Act defines term cannabis plant as follows : “cannabis plant” means any plant of the genus cannabis;” 11.2 Section 20 of the NDPS Act as it stood at the relevant time reads as follows : CR.A/729/1993 9/12 JUDGMENT “20. Punishment for contravention in relation to cannabis plant and cannabis.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,- (a) cultivates any cannabis plant; or (b) produces, manufacturers, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis shall be punishable,- (i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extent to two lakh rupees” 12.It can thus be seen that Legislature has made provisions for punishment of cultivation of cannabis plants and for possession, sale, purchase etc. of cannabis. In the present case, however, it has come on record that cannabis plant intercepted carried flowers and fruits. Substance therefore, was cannabis and not just cannabis plants. The offence of possessing such cannabis was thus punishable under Section 20(b) of the NDPS Act. 13.This brings me to the central question namely CR.A/729/1993 10/12 JUDGMENT that of sufficiency of evidence to establish the charge. It is true that in the present case, the complainant was himself the Investigating Officer and he was also the prime witness on whose testimony the appellant was convicted. Learned APP Ms. Hansa Punani may be perhaps correct in pointing out that the NDPS Act being a special Act and the questions of empowerment of an officer for search, seizure, arrest etc. for detection of Narcotics Drugs & Psychotropic Substances under the Act may sometime bring about a situation where the complainant as well as the Investigating Officer may be the same person and that therefore, the observations made by the Hon'ble Supreme Court in earlier noted judgement may not apply with all force. The question however, is was there sufficient evidence to convict him for the offence with which he was charged. 14.As noted earlier, both the Panch witnesses had turned hostile. Other than the Investigating Officer Bhupendra Ratilal Patel-PW3, there was no other eyewitness produced before the Court to prove the charge. In his deposition, the Investigating Officer could not state as to who were the members of the raiding party. No other members of the raiding party were examined as witnesses. Thus entire prosecution case revolved solely and entirely on the testimony of Bhupendra Ratilal Patel-PW3. He was leading the CR.A/729/1993 11/12 JUDGMENT raiding party. According to his version the appellant was intercepted and was found in possession of cannabis. It is this Bhupendra Ratilal Patel-PW3 who had lodged the complaint and had also carried out the investigation pursuant to his own complaint and it was this Bhupendra Ratilal Patel-PW3 who was the sole eyewitness examined by the prosecution before the Court. Even as per his own say, there were other members of the raiding party present when the appellant was intercepted. He however, could not give names of any such persons. Prosecution for the reasons best known to it did not examine any other witnesses though they were police officers and could have been easily available for examination. To my mind therefore, to base the entire conviction on the testimony of a sole witness who himself was a complainant, investigator and sole eyewitness would be highly unsafe. It is true that no role of universal application can be laid down, that under no case conviction can be recorded on the basis of sole eyewitness even if he happens to be the investigating officer also. However, when two Panch witnesses had turned hostile and when other witnesses though available were not examined and when sole eyewitness was the police witness who was the complainant and investigator and also the eyewitness examined by the Court, in the facts of the case, it would be highly unsafe to record conviction against the CR.A/729/1993 12/12 JUDGMENT appellant solely on the basis of such testimony particularly when there were suggestions in the cross examination that the appellant was forcibly involved and some other person who was actually carrying substance was allowed to go scot-free. This is more so because the intrigues of provisions involved was required not only to prove that appellant was found to be carrying cannabis plant but that such plants at the relevant time had flowers and fruits on it. In absence of such a proof, simply carrying cannabis plant is not punishable under Section 20(b) of the NDPS Act. 15.Considering all these aspects of the matter, I find learned Judge committed error in convicting the appellant. His conviction is therefore, set aside. Appeal succeeds. Bail bond stands cancelled. (Akil Kureshi,J.) (raghu)