CR.A/380/2000 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 380 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 ? =================================== GAFAR GANIBHAI MANSURI - Appellant Versus STATE OF GUJARAT - Opponent =================================== Appearance : MR G RAMAKRISHNAN for Appellant. MR KT DAVE, APP for Opponent. =================================== CR.A/380/2000 2/32 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 30/11/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. This appeal is filed by the appellant – original accused through jail who was convicted under Section 20 (b) (ii) read with Section 22 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as “the Act”) and ordered to suffer rigorous imprisonment for a period of 10 years and fine of Rs. 1 Lacs and in default thereof, further simple imprisonment of six months. Similarly, the appellant – original accused was also convicted for an offence under Section 22 of the Act and was ordered to undergo R.I. of 10 years and fine of Rs. 1 Lac and in default thereof, to undergo S.I. of three months. Both these sentences were ordered to run concurrently. CR.A/380/2000 3/32 JUDGMENT 2. The case of the prosecution as found from FIR and as revealed during the course of trial is as under :- 3. That the Police Inspector S.H. Zala of A Division, City Police Station, Jamnagar has received an information from the D Staff police constable Lagdhirsinh Chandubha in the form of a written report that a person, namely, Gafar Ganibhai Pinjara, residing in the premises of Satar Daudbhai at Dholia Pir Dargah, Bhaini Vadi, Lalkhan Chuna Bhattha, Jamnagar was illegally bringing psychotropic substance Charas and selling the same in his residential premises. On receipt of the said information, the said Mr. Zala has entered the same in Entry No. 26/1999 at 7.15 O'clock on 18.07.1999 in the station diary and conveyed the said information to the District Police Officer, Jamnagar in writing. Immediately, D staff police constable Harpalsinh Tejendrasing was instructed to call upon two Panchas and accordingly, (1) Rajendra Vallabhdas Tejani and (2) Dilip Bhijjibhai Chavda CR.A/380/2000 4/32 JUDGMENT were called as panch witnesses. Both the panch witnesses were explained about the aforesaid facts and both of them have agreed to go in the raid. The head constable Pravinsinh Bhikhubha, police constable Lagdhirsinh Chandubhai, police constable Harpalsing Tejendrasing, police constable Nikulkumar Mukundrai and police constable Sukhdevsinh Ranjitsinh of the raiding party were also explained the aforesaid facts in presence of both the panchas. A warrant under Section 42 (1) of the NDPS Act for carrying raid at the premises of the aforesaid person, was prepared and the signatures of the panchas were taken. A checking was done on the person of the panchas and the staff of the raiding party mutually and no objectionable substance or psychotropic substance Charas was found. Further, a detailed search and checking was also made in respect of necessary material like seal box, file and the Government vehicle No. GJ 10-G-0226 (T-45) as described in the panchnama and that of the government vehicle driver Manhardan Gadhvi and no objectionable material was found from them. A CR.A/380/2000 5/32 JUDGMENT detailed panchnama of the first part was prepared between 17.30 to 18.15 hours. An entry No. 27/99 was made at 18.15 hours in the station diary. An entry for proceeding in the raid was made and started with the aforesaid panchas and the police staff with necessary materials like seal, papers etc. 4. Then upon passing through Kalavad Naka, Panch Hatdi, Satvara Vada, Sodhavali, Soni Naka, the government vehicle was stopped in the chowk opposite to Dholia Pir Dargah. The panchas and the persons of the staff raided at 18.30 hours in the premises of above named Gafar Ganibhai Pinjara situated on the east side as described in the panchnama. One person was found to be present therein who was taken by surprise on seeing the police. Upon asking the name and address of the said person in presence of the panchas, he stated his name to be Gafar Ganibhai Khedara, by cast Pinjara, aged 32 years, originally residing at Dhoraji now residing in the premises of Satar Daudbhai near CR.A/380/2000 6/32 JUDGMENT Dholia Pir Dargah, Lalkhan Chuna Bhattha, Raini Vadi, Jamnagar. P.I. Mr. Zala and other police staff introduced themselves to the said person in presence of the panchas and explained the entire facts. The appellant-accused was also shown the warrant for making search of his person and of the premises by stating that he was the gazetted police officer in presence of the panchas and also asked him as to whether he wanted to get the search carried out in presence of any other gazetted officer or magistrate. The appellant – accused did not want to get the search carried out by any other gazetted officer or magistrate and expressed to be satisfied by the search being carried out by the raiding party. A signature was taken in the warrant in presence of the panchas. The appellant – accused was also explained to check the persons of the panchas and the police staff. He checked the person of all and ascertained that no psychotropic substance or charas or any other objectionable substance was found. The appellant – accused was also asked to ascertain that nothing objectionable or charas was CR.A/380/2000 7/32 JUDGMENT found from the seal-box, papers and other material etc. Then the person of the accused was checked and five gray coloured pieces in a transparent plastic paper with knot, as described in panchnama, were found from the right side pocket of the pent put on by the accused. The knot of the said paper was opened and the pieces were smelt and wet psychotropic substance charas was confirmed with extreme smell coming out and the currency notes of Rs. 5800/- as mentioned in the panchnama, were also found from the left side pocket of the pent put on by the accused. 5. Thereafter, the raiding party opened a cover of the steel tin lying beside the appellant – accused and six gray coloured pieces packed in a transparent plastic paper were found. Upon opening the said knot of the paper, all the six pieces were smelt and confirmed that extreme smell of psychotropic substance charas was also coming out therefrom. Moreover, two gray- black coloured lumps in a transparent bag were in CR.A/380/2000 8/32 JUDGMENT the said steel tin and it was smelt and ascertained that it was psychotropic substance charas with extreme smell. So, it was necessary to weigh the aforesaid quantity of charas. Therefore, police constable Lagdhirsinh Chandubha of the raiding party was sent in the government vehicle to bring a weigher with weighing scale. The said police constable brought a person with weighing scale in short time. Upon asking his name and address in presence of the panchas, he stated his name to be Bhupat Odhavji Polara aged 40 years, residing at Vanda Fali, Jamnagar. As the said person was called upon with a weighing scale to weigh the material as mentioned in the panchnama, he was shown aforesaid psychotropic substance charas which was smelt by him. He was asked to weigh the same. At first, he created an atmosphere in the said premises, as per panchnama, to weigh five pieces of charas found during the search from person of the appellant – accused. The five pieces had moist, it was weighed separately and it was total five gram i.e. one gram each as per the panchnama. Thereafter, six moistly CR.A/380/2000 9/32 JUDGMENT pieces of charas, knotted in a plastic paper from the steel tin, were weighed separately without plastic paper and it was one gram each totaling six gram in weight. Thereafter, two moistly lumps of psychotropic substance charas, found from a bag in the steel tin, were weighed without the bag and it was 51 gram. Therefore, a permit was demanded from the said person for keeping the aforesaid quantity in his custody and the appellant – accused has stated that he was not having any permit. So the five pieces of charas, weighing five grams found while search on the person of him, were kept in a plastic bag with a slip bearing the signatures of the panchas. It was packed with wax solution and the said bag was kept in a cloth bag and stitched. Three seals, as per the panchnama were fixed thereon. It was valued at Rs. 125/- and given mark A. it is seized as a sample for investigation. Similarly, six pieces of charas, weighing six gram knotted in a plastic paper in the steel tin, were placed in a transparent bag and affixed with wax solution, as per the panchnama, and placed with the slip bearing CR.A/380/2000 10/32 JUDGMENT signature of the panchas in a cloth bag whereon the slip bearing signature of the panchas was also affixed. It was stitched and three wax seals were affixed thereon. It was valued at Rs.150/- and given Mark B and seized as a sample for investigation. The accused was thereafter given seizure memo regarding the entire muddamal articles which were seized and his signature was taken on a copy. Thus the appellant has committed an offence under Section 20 (b) (ii) read with Section 22 & 27 of the Act for keeping in his custody the psychotropic substance called charas valuing about Rs.1550/- without any permit. He was arrested at about 20.30 hours and he was accordingly informed about his arrest in writing under Section 57 of the Act. His signature was obtained on a copy and thereafter complaint was filed against him with Jamnagar City A Division Police Station on 18.07.1999 at about 21.15 hours, being I C.R. No. 717 of 1999. 6. Pursuant to the registration of the offence, the CR.A/380/2000 11/32 JUDGMENT 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 the accused, he was charge-sheeted in the Court of learned Special Judge, Jamnagar who framed charge against the accused for commission of the offence punishable under Section 20 (b) (ii) read with Section 22 of the Act. 7. The charge was read over and explained to the accused. As the accused has not pleaded guilty to the said charge, he was put to trial and tried by the learned Special Judge, Jamnagar in Sessions Case No. 4 of 1999. 8. To prove the culpability of the accused, prosecution has in all examined as many as 9 witnesses, the CR.A/380/2000 12/32 JUDGMENT details of which are as under:- Sr. No. Particulars Exh. No. 01. Deposition of P.W. 1 – Rajendra V. Tejani. 08 02. Deposition of P.W. 2 – Bhupatbhai Odhavjibhai. 15 03. Deposition of P.W. 3 – Satarbhai Dawoodbhai. 17 04. Deposition of P.W. 4 – Nurudin Taherbhai. 18 05. Deposition of P.W. 5 – Sukhdevsinh H. Zala. 20 06. Deposition of P.W. 6 – Mohanbhai Ravjibhai. 36 07. Deposition of P.W. 7 – Jentilal Arjanbhai. 38 08. Deposition of P.W. 8 – Jitendrabhai Premjibhai. 40 09. Deposition of P.W. 9 – Ramabhai Kuberbhai. 41 9. Prosecution has also produced several documents and relied upon the contents of the same. Charge is framed at Exh. 3. List of muddamal is at Exh. 6. Panchnama is drawn at Exh. 9. Certificate is issued at Exh. 16. Another panchnama drawn is at Exh. 19. Seizure memo issued at Exh. 23. Station diary is CR.A/380/2000 13/32 JUDGMENT produced at Exh. 24, 25 & 27. FIR is at Exh. 29. FSL Certificate is issued at Exh. 44. After recording of the evidence of the prosecution witnesses was over, the learned Special Judge, Jamnagar explained the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement, as required under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution by reiterating that he has been falsely implicated. In his defence, the accused has examined Jiluben Mohmmadbhai as D.W. 1 at Exh. 53. 10.On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Special Judge, Jamnagar has held that the prosecution has established beyond reasonable doubt that the charge levelled against the accused was proved and, therefore, the accused was held guilty of the offence punishable under Section 20 (b) (ii) & Section 22 of the Act. The learned Special CR.A/380/2000 14/32 JUDGMENT Judge, Jamnagar has, however, heard the accused and his advocate on sentence and looking to the gravity of the offence committed by the accused and looking to the circumstances, the appellant – accused was sentenced to suffer rigorous imprisonment of 10 years and fine of Rs. 1 Lac and in default thereof, to undergo simple imprisonment of six months for the offence punishable under Section 20 (b) (ii) and he was also sentenced to suffer R.I. of 10 years and fine of Rs. 1 Lac and in default thereof, to undergo S.I. of three months for the offence punishable under Section 22 of the Act. Both these sentences were ordered to run concurrently. 11.Mr. G. Ramakrishnan, learned advocate appearing for the appellant – original accused has taken us through the oral as well as documentary evidence which are on record and also assailed the judgment and order of the learned Special Judge, Jamnagar dated 30.03.2000. He has submitted that the learned CR.A/380/2000 15/32 JUDGMENT Special Judge has erred in convicting the appellant though there was no cogent or adequate evidence showing his guilt in the matter. He has further submitted that the learned Special Judge, Jamnagar has failed to appreciate that the appellant is innocent and has not committed the alleged offence. He has further submitted that the statutory compliance required under the Act have not been fulfilled by the prosecution. The sealing procedure was not properly followed by the raiding party and there were numerous discrepancies and contradictions in the depositions of the panch witnesses as well as police witnesses. There was also very vital difference about sealing muddamal articles in the version of the panch witnesses, police witnesses and F.S.L. Report. He has, therefore, submitted that the appellant–accused could not have been convicted on the basis of F.S.L. Report identifying muddamal as contraband goods. 12.In support of his submission that the sealing CR.A/380/2000 16/32 JUDGMENT procedure was not properly followed and there were serious lapses, he 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, (1) Chandrakant Nagindas Modi V/s. State of Gujarat, 1989 (I) FAC 153, (2) 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 (3) 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 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 CR.A/380/2000 17/32 JUDGMENT by the Investigating Officer and possibility of tampering with muddamals 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. 13.Mr. Ramkrishnan has also relied on the judgment of this very Bench delivered in Criminal Appeal No. 1366 of 1999 with Criminal Appeal No. 34 of 2000 decided on 21.09.2006 wherein all the previous judgments were referred to and relied upon and the appellant – accused was acquitted on the ground that the sealing procedure was not properly followed by the prosecution. 14.Mr. K.T. Dave, learned Additional Public Prosecutor appearing for State of Gujarat, on the other hand, CR.A/380/2000 18/32 JUDGMENT supported the order and judgment of the learned Special Judge and submitted that there was no violation of any statutory 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 the Act were violated. So far as sealing procedure is concerned, he has submitted that the learned Special Judge has discussed at length this issue in the impugned judgment and order and he has come to the right conclusion that there was no violation of the sealing procedure. He has also considered various authorities cited before him and after considering the same, he has arrived at a conclusion that the sealing procedure was properly followed and the appellant was rightly convicted. 15.We have considered the submissions advanced by learned advocates appearing for the respective parties at length. We have also undertaken a complete and comprehensive exercise of CR.A/380/2000 19/32 JUDGMENT appreciating all vital features of the case and the entire evidence on record with reference to broad 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 Special Judge, Jamnagar convicting the appellant. 16.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 him. 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 procedure was absolutely defective. There is difference in the inscription of the seals used for sealing samples and CR.A/380/2000 20/32 JUDGMENT so misuse of the seal for tampering the contents of the sample cannot be ruled out. 17.To examine and appreciate this contention, relevant provisions in the Act or Rules made thereunder touching this subject matter are required to be looked into. 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 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 u/S. 55 of the Act. Standing Order No. 1/88 dated CR.A/380/2000 21/32 JUDGMENT 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 :- (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 CR.A/380/2000 22/32 JUDGMENT 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. (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. 18.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 CR.A/380/2000 23/32 JUDGMENT 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 aspect has escaped the notice of the Learned Trial Judge and in view thereof, the Court allowed the appeal and acquitted the appellants. 19.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 has some substance. After considering the evidence of the Investigating Officer and Panch witnesses, the Court CR.A/380/2000 24/32 JUDGMENT has observed that after drawing the samples, at the time of sealing the samples as well as the remainder of the contraband seized, the slips containing signatures of the Panch witnesses and the Police Officer were placed inside the bags, thereafter the bags were stitched and wax seals were applied. There is no dispute that the Seal remains in custody of the police. The possibility of tampering with the muddamal at a later stage and then again resealing the same by the Investigating Agency cannot be ruled