CR.A/89/2002 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.89 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND 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? ============================================================== MOHEMMAD IQBAL YAKUBJI CHHIPA & ORS.- Appellants Versus STATE OF GUJARAT - Respondent ============================================================== Appearance : MR MJ BUDDHBHATTI for Appellants. MR ND GOHIL, APP for Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 26/09/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment dated January 10, 2002 rendered by the learned Special Judge & Additional Sessions Judge, Bharuch, in Special N.D.P.S. Case Nos.6 of 1998 and 12 of 1998 by CR.A/89/2002 2/35 JUDGMENT which the five appellants are convicted under Section 21 read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (“the Act” for short), and each sentenced to R.I. for fifteen years and fine of Rs.1 Lac, in default R.I. for one year. 2. The short facts emerging from the record of the case are as under: Mr.J.D.Ramgadhiya, who was serving as Police Inspector in Unit No.IV of A.T.S., Ahmedabad, received a secret information at 3.30 PM on March 9, 1998 that four persons namely; (1) Iqbal Chhipa; (2) Pappu Dhobi; (3) Bhaskar Rajan; and, (4) Ramesh Dhobi, were going to deliver brown sugar to Malaiya Rajan Gaupati behind Bharuch Railway Police Station, near Sheetal Guest House, Bharuch. In the secret information, description of the dresses put on by the abovenamed four persons was also given. Mr.Ramgadhiya conveyed the secret information received by him to Mr.Shaikiya, who was his immediate official superior. He with his staff in the company of Mr.D.A.Patel, who was Police Inspector, Unit No.I, A.T.S. Ahmedabad, came to Bharuch in Government Vehicle bearing registration No.GJ-1-G-3136. Mr.Ramgadhiya conveyed the information received by him to Mr.Kiritsinh Jhala, who was then Police Inspector, “A” Division, Police Station, CR.A/89/2002 3/35 JUDGMENT Bharuch in writing, and requested him to assist in the raid. Police Inspector Mr.Jhala asked Constable Karshanbhai to summon panch-witnesses and also asked Police Constable Viththalbhai to summon a person to weigh the substance if ultimately it was found from the possession of the persons named in the secret information. On arrival of panch-witnesses, their willingness to act as panch-witnesses was ascertained and first part of the panchnama was drawn at the Police Station. A photographer was also summoned to picturize as to what was happening during the raid. The members of the raiding party including panchas, photographer, and the person, who was summoned to weigh the substances, proceeded towards the spot indicated in the information in two vehicles from Bharuch Police Station. The vehicles were parked near Bharuch Railway Police Station. After alighting from the vehicles, the members of the raiding party reached the place near Sheetal Guest House on foot and took their position behind luxury buses to keep vigil about suspicious activities of the persons, who were named in the secret information. At about 12.20 hours, one person was sighted coming from the side of Railway over-bridge. He stood near fence of Sheetal Guest House. After sometime, four persons came on foot from the side of College Road. They reached near Sheetal Guest House and shook hands with the person who was already standing CR.A/89/2002 4/35 JUDGMENT near the fence of the guest house. Therefore, the four persons started talking with the person who had come from the side of Railway over-bridge. As the four persons, who had come from the side of the College Road, answered the description given in the secret information, the members of the raiding party cordoned them. The Police Inspectors introduced themselves to the five persons and informed them about the receipt of the information by Mr.Ramgadhiya. The five persons were informed by the Police Officers that it was necessary to search their persons and offered them to be searched in presence of a gazetted officer or a magistrate, if they so desired. However, offer made by the Police Officers was declined by the five persons. On interrogation, the five persons disclosed their names; i.e. (1) Mohmed Iqbal Yakubji Chhipa, who is appellant No.1 herein; (2) Pappu Mohanlalji Dhobi, who is appellant No.2 herein; (3) Bhaskar Gangarajan Pangutee, who is appellant No.3 herein; (4) Rameshbhai Sunderlal Dhobi, who is appellant No.4 herein; and (5) Malaiya Rajan Gaupati, who is appellant No.5 herein. It was found that the appellant No.1 was carrying a cloth bag in his hand and on search, it was found to be containing a plastic bag. The plastic bag was opened and it was found that substance kept in the plastic bag was brown sugar. On search of person of the appellant No.1, a black coloured wallet, two keys, CR.A/89/2002 5/35 JUDGMENT railway ticket from Ratlam to Vadodara whereas another railway ticket and receipt dated March 9, 1998 issued by Tourist Section of Vadodara Municipal Corporation, one telephone diary, and Rs.32=00 in cash, were found. The search of person of the appellant No.2 resulted into find of plastic bag containing brown sugar and Rs.500=00 in cash whereas search of person of the appellant No.3 resulted into find of a plastic bag and Rs.120=00 in cash. Further, railway ticket from Borivalli to Ratlam and identification card were also recovered from the person of the appellant No.3. The search of person of the appellant No.4 resulted into find of cash of Rs.100=00 whereas the search of appellant No.5 resulted into find of cash of Rs.100=00. It may be stated that the members of the raiding party had carried with them a testing-kit also with other materials such as sealing wax, seal, etc. The Police Officer demanded pass or permit authorizing the appellants to possess brown sugar, but no pass or permit could be produced. It is worth noticing that the place where brown sugar was found from the possession of the appellants, was dark and it was not possible to weigh the substance or draw samples. Therefore, the appellants were taken to Sheetal Guest House. There, Room No.110 was booked and seized substance was subjected to preliminary test, which was carried out by Mr.Dodiya, and it was found that powder kept in plastic bags found from CR.A/89/2002 6/35 JUDGMENT possession of the appellant Nos.1 to 3 was brown sugar. Vimalbhai Kantilal Jain, who was summoned to weigh the substance, weighed the same on electronic digital scale. The substance seized from the possession of the appellant No.1 weighed 493 gms. 500 mgms. whereas the substance found from the possession of the appellant No.2 weighed 555 gms. and the substance found from the possession of the appellant No.3 weighed 540 gms. Thereafter, three separate samples from each bag were drawn and sealed as required by law after which, second part of panchnama was concluded at Sheetal Guest House. PI Mr.D.A.Patel reduced into writing his complaint at Sheetal Guest House. It was forwarded to “A” Division Police Station, Bharuch, for registration of offences. In order to ascertain nature of substance found from possession of the appellants, an expert from F.S.L. was summoned at the Police Station. On arrival of expert of the F.S.L., one sealed sample out of three sealed samples drawn from each bag was opened and analyzed. The report of the expert, prima facie, indicated that the substance analyzed was brown sugar. The complaint of Mr.Patel was handed over to Mr.Dodiya for investigation, who retained samples with him after informing the learned Chief Judicial Magistrate, Bharuch. During the course of investigation, the Investigating Agency arrested Meerbazkhan Iradkhan Pathan. On completion of investigation, the five appellants along CR.A/89/2002 7/35 JUDGMENT with Meerbazkhan Iradkhan Pathan, were chargesheeted in the Court of learned Special Judge, Bharuch. On the basis of the chargesheet, Special N.D.P.S. Case No.6 of 1998 was registered. Further, the investigation revealed that Chandu @ Chandrashekhar Dharamchand Bhatevara had brought brown sugar in his ambassador car from Rajsthan to Baroda and handed over quantity of brown sugar to the appellant No.2. It was revealed that as a part of conspiracy, the appellant Nos.1 to 4 were to hand over brown sugar to the appellant No.5 who ultimately was to take the same at Bombay. Therefore, accused Chandu was also booked for commission of offence punishable under the Act. He could not be arrested before Special N.D.P.S. Case No.6 of 1998 was registered. However, subsequently, he was also arrested and on the basis of chargesheet submitted against him, Special N.D.P.S. Case No.12 of 1998 was registered. 3. The learned Special Judge to whom Special N.D.P.S. Case No.6 of 1998 was made over for trial framed necessary charge against the appellants and Meerbazkhan Iradkhan Pathan at Exh.12. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. In Special N.D.P.S. Case No.12 of 1998, the charge against Chandu @ Chandrashekhar Bhatevara was framed at Exh.4. It was also read over and explained to CR.A/89/2002 8/35 JUDGMENT him. He also pleaded not guilty to the same and claimed to be tried. As both the cases were arising from the same transaction, they were consolidated on the request of the learned advocates of the parties. 4. In order to prove its case, the prosecution examined; (1)panch Yogeshkumar Kanaiyalal Pandya as P.W.- 1 at Exh.23; (2) panch Rameshchandra Pyarelal Agrawal as P.W.-2 at Exh.32; (3) panch Natwarbhai Behchar Jadav as P.W.-3 at Exh.33; (4) panch Abdul Harif Abdul Majeed Shaikh as P.W.-4 at Exh.39; (5) panch Hajarkhan Zarinkhan Pathan as P.W.-5 at Exh.51; (6) panch Narendrasinh Khumansinh Chauhan as P.W.-6 at Exh.53; (7) panch Thakoreprasad Jadeeshlalji Khatri as P.W.-7 at Exh.54; (8) panch Umashanker Mohanlalji as P.W.-8 at Exh.56; (9) Vimalkumar Kantilal Jain as P.W.-9 at Exh.59; (10) Pragnesh Hasmukhlal Soni as P.W.-10 at Exh.60; (11) Surendralal Harilal Shukla as P.W.-11 at Exh.62; (12) owner of STD-PCO Nizamuddin Yusuf Patel as P.W.-12 at Exh.65; (13) owner of Rambharose Hindu Hotel & Boarding House Dhirajlal Amrutlal as P.W.-13 at Exh.67; (14) owner of Gallord Pan-Shop Jitendrabhai Dahyabhai as P.W.- 14 at Exh.71; (15) owner of Mayank Hotel Murtujabhai Abbasbhai as P.W.-15 at Exh.72; (16) Employee of Pravasi CR.A/89/2002 9/35 JUDGMENT Gruh run by Baroda Municipal Corporation Mr.A.B.Purohit as P.W.-16 eat Exh.75; (17) Police Constable Ratilal Jagabhai as P.W.-17 at Exh.80; (18) Police Constable Karshanbhai Ratanjibhai as P.W.-18 at Ex.82; (19) Crime Write Head Pandurang Omkar Thakre as P.W.-19 at Exh.87; (20) Police Constable Viththalbhai Dahyabhai as P.W.-20 at Exh.92; (21) Unarmed Head Constable Prabhaker Laxmanbhai as P.W.-21 at Exh.93; (22) A.S.I. Shrikantbhai Vijaybhai Valivi as P.W.-22 at Exh.99; (23) Police Constable Arvindbhai Bhagwanbhai as P.W.-23 at Exh.101; (24) Police Inspector Dawoodbhai Adambhai Patel as P.W.-24 at Exh.105; (25) Police Inspector Kiritsinh Surubha Jhala as P.W.-25 at Exh.121; (26) Police Inspector Jashvetdarsinh Dharmasinh Ramgadhiya as P.W.-26 at Exh.133; (27) Police Inspector Mansukhbhai Balubhai Tarbada as P.W.-27 at Exh.157; and (28) Investigating Officer Naransinh Ganpatsinh Dodiya as P.W.-28 at Exh.160. The prosecution also produced documentary evidence such as muddamal slips bearing signatures of panch witnesses and Police Officers at Exh.24 to 31; panchnama indicating that muddamal seized was analyzed by expert of F.S.L. at Police Station at Exh.34; different slips bearing signatures of panch witnesses at Exhs.35 to 38; report by PSI Mr.Dodiya, “A” Division Police Station to learned chief Judicial Magistrate, Bharuch, dated March 10, 1998 at Exh.43; CR.A/89/2002 10/35 JUDGMENT resolution prepared before searching house of the appellant No.2 situated at Pratapgadh at Exh.44; panchnama indicating compliance of Section 50 of the Act before search of house of the appellant No.2 at Exh.45; panchnama of search of house of the appellant No.1 at Exh.47; resolution prepared under Section 42 of the Act relating the appellant No.4 at Exh.48; panchnama of search of house of the appellant No.4 at Exh.49; panchnamas of house of the appellant No.2 at Exh.52 and 55; extracts of register of Guest House and Rambharose Hindu Hotel as well as Mayank Hotel at Exhs.68 and 73, etc.; record prepared by Junior Clerk of Pravasi Gruh that Room No.2 was rented to the appellant No.3 of Bombay on March 8, 1998, who had gone away after applying his own lock on the room and not returned till March 16, 1998 as a result of which lock was broken open and articles mentioned therein were found at Exh.79; copy of the sealed cover which Ratilal had handed over to in charge Jamadar Abbasbhai at the instance of PI Mr.Jhala at Exh.81; intimation by PI Mr.Jhala to P.S.O. to register offence against the appellant No.3 and others under Section 21 read with 29 of the Act and asking him to hand over the investigation to PSI Mr.Dodiya at Exh.94; verdhi indicating that information was conveyed to Gayatriben about arrest of her husband Rameshbhai Dhobi at Exh.96; receipt by F.S.L. for having received CR.A/89/2002 11/35 JUDGMENT muddamal at Exh.100; complaint of PI Mr.D.A.Patel at Exh.106; panchnama of search of persons of Mohmed Iqbal Chhipa, Pappu Dhobi, Bhaskar Anna, Ramesh Dhobi and find and seizure of brown sugar from Mohmed Iqbal, Pappu Mohanlalji Dhobi, Bhasker Gangarajen, etc. at Exh.123; entry from Police Station Diary at Exh.124; report under Section 42(2) by PI Mr.Jhala to D.S.P. Bharuch at Exh.125; record indicating that information received was reduced into writing at Exh.126; resolution prepared by Mr.Jhala before effecting search of the accused at Exh.127; entry indicating that the expert of F.S.L. was summoned at Police Station to analyze the substance found at Exh.128; intimation by PI Mr.Ramgadhiya to PI “A” Division to maintain watch in view of the information received at Exh.134; application dated March 10, 1998 made by Mr.Dodiya to Chief Judicial Magistrate, Bharuch, to permit him to keep custody of muddamal at Exh.163; preliminary opinion given by expert of F.S.L. that substance analyzed was brown sugar at Exh.164; report about search, seizure and arrest of the accused to Sub Division Magistrate at Exh.165; report of analysis at Exh.167; forwarding letter with which muddamal was sent to F.S.L. at Exh.171; etc. in support of its case against the appellants and others. 5. After recording of evidence of the prosecution CR.A/89/2002 12/35 JUDGMENT witnesses was over, the learned Judge explained to the appellants and others the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the appellants claimed that they were innocent. The appellant No.2 filed his written statement at Exh.181 whereas the appellant No.3 filed his written statement at Exh.182 and the appellant No.4 filed his written statement at Exh.183 whereas the appellant No.5 filed his written statement at Exh.184. No defence evidence was adduced by any of the appellants. 6. On appreciation of evidence adduced by the prosecution, the learned Judge of the trial Court held that it was not proved by the prosecution that the original accused No.6, i.e. Meerbazkhan Iradkhan Pathan, and the original accused No.7, i.e. Chandu @ Chandrashekhar Dharamchand Bhatevara, were party to criminal conspiracy hatched by the appellants and were entitled to be acquitted. The learned Judge deduced that it was proved by the prosecution that that the appellant Nos.1 to 3 were found in possession of the brown sugar without pass or permit in pursuance of conspiracy entered into with the appellant Nos.4 and 5. In view of abovereferredto conclusions, the learned Judge has CR.A/89/2002 13/35 JUDGMENT acquitted the original accused Nos.6 and 7, but convicted the appellants under Section 21 read with Section 29 of the Act and imposed sentence referred to earlier by judgment dated January 10, 2002, giving rise to instant appeal. 7. This Court has heard Mr.M.J.Budhdhbhatti, learned counsel of the appellants, and Mr.N.D.Gohil, learned Additional Public Prosecutor for the State, at length and in great detail for three days. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 8. The contention that the story of the prosecution is unnatural and, therefore, the appellants should be acquitted, has no substance. The learned counsel of the appellants could not pinpoint as to which part of the prosecution story is unnatural. The prosecution case is that Mr.Ramgadhiya, who was PI of Unit No.IV, A.T.S., Ahmedabad, had received secret information that the appellant Nos.1 to 4 were to deliver brown sugar to the appellant No.5, pursuant to which the raid was carried out and from the possession of the appellant Nos.1, 2 and 3 brown sugar, in fact, was seized. If Mr.Ramgadhiya had not received information as claimed by him, he would not CR.A/89/2002 14/35 JUDGMENT have made report to his immediate official superior Mr.Shaikiya nor informed Mr.Jhala, who was then PI of “A” Division Police Station, Bharuch, nor would have gone to Bharuch nor maintained a vigil at the place which was mentioned in the secret information. It is relevant to notice that the procedure of seizure and weighing was carried out in Sheetal Guest House, which was photographed. Those photographs are produced on record by the prosecution at Exh.61. Under the circumstances, this Court fails to understand as to how the story of the prosecution can be termed as unnatural. The story of the prosecution is probable and is rightly believed by the learned Judge of the trial Court who had advantage of observing demeanour of the witnesses. Therefore, no benefit can be granted to any of the appellants on the specious plea that story of the prosecution is unnatural. 9. The contention that no independent witnesses have supported the prosecution case and, therefore, the case based on the evidence of the Police Officers should not have been accepted by the trial Court, is merely stated to be rejected. In Vahaji Ravaji Thakore & Anr. vs. State of Gujarat, 2003(3) G.L.H. 283, this question has been discussed in detail. After referring to the decisions of the Supreme Court on the point, the Division Bench of this Court has held as under: CR.A/89/2002 15/35 JUDGMENT “Merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over broad as unreliable. It must be realised that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasized that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision of the case were to depend solely on the testimony of panch witnesses regardless of the evidence of independent witnesses, in theory, it would be giving a right of veto to the panchas so far as that question of culpability of an accused is concerned. If the evidence of Police Officer is otherwise found to be true and dependable, judicial pragmatism requires that merely because the panchas do not support, it should not be made a ground to discard his evidence.” Applying the principle laid down in the above- quoted decision to the facts of this case, this Court finds that all the Police Officers have deposed before the Court consistently. The Police Officers were discharging their official duties. It could not be pointed out by the defence that any of the Police Officers was on inimical terms with any of the appellants. The claim advanced by the Police Officers before the Court gets ample corroboration from the contemporary documents, which were prepared at the relevant time and produced on record of the case. Though all the Police Officers have been subjected to gruelling cross-examination, nothing could be elicited so as impeach their credibility. On reading the evidence CR.A/89/2002 16/35 JUDGMENT tendered by the Police Officers, it becomes, at once, clear that the Police Officers are witnesses of truth. Therefore, their evidence cannot be disbelieved or discarded merely because panch witnesses have not supported the prosecution. The plea that the panch witnesses have not supported the prosecution case and the Police Officers are interested witnesses as a result of which, the appellants should be acquitted, is devoid of merits, and is hereby rejected. 10. The plea that no report was made to higher official superior as required by Section 42(2) of the Act and, therefore, the appellants should be acquitted, is also merely stated to be rejected. The record of the case shows that the raid was carried out in an open place. It is nobody's case that the raid was carried out in a building, a conveyance or an enclosed place. Under the circumstances, the provisions of Section 42(2) of the Act would not be applicable to the facts of the case. This is in view of the decisions of the Supreme Court case in (1) Krishna Kanwar vs. State of Rajsthan, (2004) 2 SCC 608; (2) Rajendra & Another vs. State of M.P. (2004) 1 SCC 432; and (3) State of Hariyana vs. Jarnail Singh, (2004) 5 SCC 188. In view of the authoritative pronouncements of law on the point, no benefit can be accorded to the appellants on the ground that the report CR.A/89/2002 17/35 JUDGMENT under Section 42(2) of the Act was not forwarded by the raiding officer to his immediate official superior. 11. The plea that the provisions of Section 50 of the Act are not complied with and, therefore, the appellants should be acquitted, has no substance at all. The record shows that before effecting search of persons of the appellants, they were offered to be searched in presence of a gazetted officer or a magistrate, but the said offer was declined by the appellants. It may be stated that as far as the appellant No.1 is concerned, the bag carried by him was searched and, therefore, the provisions of Section 50 of the Act would not be applicable. Further, before searching his person as well as persons of other appellants, offer as contemplated by Section 50 of the Act was made. This is quite evident if one peruses the testimonies of the Police Officers examined in the case. The assertion made by the three PIs on oath before the Court that the offer as contemplated under Section 50 of the Act was made and that offer was declined by the appellants, could not be demonstrated to be false. The fact that the offer as contemplated by Section 50 of the Act was made, is mentioned in the panchnama which was drawn at Sheetal Guest House itself. Further, the fact that the offer that the appellants could be searched in presence of a gazetted officer or a CR.A/89/2002 18/35 JUDGMENT magistrate if so desired was made and that the said offer was declined, is also mentioned in the complaint itself, which was reduced into writing by Mr.Patel at Sheetal Guest House. The reliable testimony on record establishes that Section 50 of the Act was fully complied with. The finding recorded by the learned Judge of the trial Court to the effect that evidence on record clearly establishes that Section 50 of the Act was complied with, could not be demonstrated to be erroneous. As the evidence on record satisfactorily establishes that the provisions of Section 50 of the Act were complied with before effecting search of persons of the appellants, the appellants are not entitled to get any benefit of doubt on the ground that mandatory provisions of Section 50 of the Act, were not complied with. 12. The argument that the Police Officer in charge