CR.A/543/2000 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 543 of 2000 HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ====================================================== 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 ? ====================================================== ISUBBHAI HAKIMBHAI ADADARIA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ====================================================== Appearance : MRS SHILPA R SHAH for Appellant MR HL JANI, APP, for Opponent ====================================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/543/2000 2/13 JUDGMENT Date : 25/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal is directed against the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge, Panchmahals at Godhra in Special Case No.7 of 1998 (Naracotic), whereby the learned additional sessions Judge has convicted the appellant under section 15 of the Naracotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act) and ordered to undergo rigorous imprisonment for 12 years and fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment of three years. 2.0 The prosecution case, in short is as under: 2.1 On 12th August 1998 Police Constable Ganpatsinh Balvatsinh of Godhra Town Police Station was on duty at Lalbaug S.T. bus-stand from 1400 hours to 2000 hours. At about 1800 hours Police Constable Bhimsinh Jaysinh and Police Sub Inspector Shri F.B. Patel, in the course of their patrolling, came to Lalbaug bus stand. At that time the complainant has spotted one person standing at the bus stand which for passengers going to Vadodara. He has also noticed that along with the said person there was one filled gunny bag with him. CR.A/543/2000 3/13 JUDGMENT 2.2 The complainant therefore along with other police personnel went to the said person and inquired about the material which is lying in the gunny bag. Since no satisfactory explanation was given, the complainant informed him that he is going to search the gunny bag and if the said person wanted, the search can be done in presence of a gazetted officer. However, the concerned person has denied the same and therefore the police inquired his name to which he replied that his name is Isuf Hakkim Dadadaria Shaikh, residing at Vejalpur Nano Mahallo. 2.3 The said gunny bag was opened in the presence of panchas and it was found found that the bag contained Coffee Straw. The person was asked whether he possessed licence for the same to which he replied in the negative. Therefore the police has instructed one person to call a trader for the purpose of weighing muddamal. Accordingly one Gopaldas Girdharlal Shah was called who came along with weighing scale. The muddamal article was weighed at 18.5 kgs and the market value of the material was estimated at Rs.1850/-. The appellant was again searched, but nothing was found from his possession. The police has collected a plastic jar, taken out 200 gram coffee straw from the gunny bag and placed in the jar. The lid of the jar was closed and the CR.A/543/2000 4/13 JUDGMENT panchas have signed on the slip attached with the jar and applied lac and seal of Inspector of Police, Godhra Town Police Station. The panchnama thereof was completed at 1920 hours and thereafter the accused, complaint, panchnama, etc. were sent to Godra Police station. On receipt of the same the PSO, Godhra Town Police Station has registered C.R. No.III 182 of 1998. 2.4 Thereafter the investigating officer has started investigation in the matter and during the course of investigation the appellant has been sent to judicial custody and has recorded statements of various witnesses and also made arrangements to send muddamal article to FSL. At the end of investigation and on receipt of the report from FSL chargesheet has been filed in the court of learned Sessions Judge, Panchmahals at Godhra. On receipt of the same it has been numbered as Special Case No.7 of 1998 and for the purpose of disposing of the same on merits it has been sent to the court of learned Additional Sessions Judge, Panchmahals at Godhra. The learned Additional Sessions Judge has framed charge and at the end of trial he has delivered the judgement convicting the appellant-accused as mentioned above. 3.0 We have heard Ms Shilpa Shah for the appellant and Mr. H.L. CR.A/543/2000 5/13 JUDGMENT Jani, learned APP, for the respondent. 3.1 Mrs. Shilpa Shah, learned Advocate for the appellant has submitted that the appellant has been convicted under section 15 of the NDPS Act for a period of 12 years and ordered to pay a fine of Rs.1 lac, in default to undergo rigorous imprisonment for three years. She argued that the police authority is required to follow mandatory as well as directory procedures which are not followed. 3.2 She submitted that the witnesses are police personnel and though the search and seizure has taken place in a public place known as Lalbaug bus stand no single statement of a person has been recorded by the prosecution and the witnesses are concocted. 3.3 She has argued that as such no search and seizure have taken place as mentioned by the prosecution. According to her there is serious lacuna in the evidence inasmuch first the complainant has noticed he person who was standing at the bus stand and near to him there was a gunny bag and therefore he went there and inquired. But according to her the prosecution has failed to prove the conscious possession of muddamal in question. CR.A/543/2000 6/13 JUDGMENT 3.4 She has further argued that presence of PSI Shri Patel and other police personnels are not natural one and they have entered into the prosecution case for the reason best known to them. 3.5 She further argued that even the evidence of police personnels are also contrary to each other on procedural aspect and the prosecution has also failed to establish as to who brought the needle, thread, seal, lac, etc. for sealing the jar. 3.6 According to her there is lacuna on the part of the prosecution to the effect that after the accused and other muddamal articles were handed over to PSO, Godhra Police Station, for a considerable period of time the muddamal articles remained with the police station and there is no evidence worth the name as to who has taken the muddamal articles, whether it was under safe custody etc. 3.7 In this regard Ms Shilpa has relied upon a decision in the case of Navinkumar Alias Shambhuprasad alias Baji Chimanlal Vyas Vs. State of Gujarat, reported in 2006(1) GLH 409. Para 7 of the said decision reads as under: “The prosecution case is that Mr. D.J. Vaghela, PSI, R.R. Cell, Gandhinagar Range, Gandhinagar, had raided house CR.A/543/2000 7/13 JUDGMENT of the appellant, which resulted into find of poppy straw, prepared opium, poppy husk, psychotropic substances, etc., Mr. Vaghela is neither a Gazetted Officer, nor empowered officer under section 41(2) of the Act. Therefore the provisions of section 42 of the Act would apply to the facts of the case. There is no manner of doubt that it was his duty to comply with the provisions of Section 42 of the Act. The evidence on record shows that he had reduced the information received by him into writing, which is quite evident from the contents of Exh.27. However, the record does not show that he had forwarded the report contemplated by Section 42(2) of the Act to his immediate official superior. In fact, in Para 20 of his deposition, P.S.I. Mr. Vaghela has, in term, admitted that except reducing the information into writing by making an entry in the Station Diary, he had not informed any officer of his department about the receipt of the information. Mr. K.T. Dave, learned A.P.P. for the State, could not satisfy the Court that the report as envisaged under section 42(2) of the Act was forwarded by PSI Mr. D.J. Vaghela to his immediate official superior. Thus, there is no manner of doubt that mandatory provisions of section 42(2) of the Act were not complied with. By catena of decisions of the Apex Court, it is well settled that non-compliance of the provisions of Section 42(2) of the Act would entitle prejudice resulting from non- compliance of the said provisions. Therefore, instant appeal deserves to be accepted on this short ground.“ The aforesaid decision has been delivered by the Court relying upon two other judgements on the point in question. 3.8 Lastly it has been argued by her that the appellant is undergoing prisoner since about nine and half years and even the muddamal article which is alleged to have been seized from him is only of 18.5 kgs and as per section 15 of the NDPS Act, minimum punishment is of 10 years and practically he has undergone the same. She, therefore requested CR.A/543/2000 8/13 JUDGMENT that said point requires to be kept in mind while considering this appeal. 4.0 Mr. H.L.Jani, learned APP, has resisted the appeal on various grounds and lastly he has drawn our attention that the present appellant-accused is an offender under narcotic substance Act and it is not an offence against individual, but against public at large and therefore while dealing with the same the Court should not take the matter lightly and therefore the appeal deserves to be dismissed. 5.0 We have gone through the oral as well as documentary evidence which has been shown to us by the learned Advocate for the appellant. The prosecution has examined one Rajubhai Kalidas Desai (PW1) at Exh.5. He is the panch of search and seizure panchmana, but he has not supported the panchnama. Therefore the prosecution has declared him hostile, but no important evidence came out from cross examination of this witness. 6.0 The prosecution examined Bhupendrasinh Chandrasinh Jadhav (PW2-Exh.7). He is second panch of the panchnama of search and seizure and through him prosecution is able to prove the panchnama of search and seizure. He has categorically deposed in his oral evidence that when he has been called at Lalbaug bus stand the police has arrested one Adadaria Shaikh and he has identified the same along CR.A/543/2000 9/13 JUDGMENT with the muddamal in the court. He has also proved that the gunny bag has been opened by the police in his presence and one Marwadi has completed the weighing process and as per his deposition the weight was about 12.5 kg. and from the same the police has taken out some material as muddamal and he has proved the panchmana Exh.6. In his cross examination he has admitted that he is the owner of the bicycle shop and his shop is situated near Godhra Town Police Station and has also admitted that all police personnel of the Godhra Town Police Station are known to him. According to him police had gone to his shop and informed him that one person has been arrested and he has to work as panch and as police were known to him he has consented for the same. He has also admitted that he has worked as panch in about 20 to 25 cases. He has also admitted that he does not know as to who called him from his shop and the person who called him had come on a motorcycle. He has also admitted that Lalbaug bus stand is the main bus stand of Godhra city and it is a thickly populated area and at any time there will be about 700-800 people in the bus stop. 6.1 Ganapatsinh Arjunsinh (PW3) was examined at Exh.8. He is the Police Constable who was on duty and the person who has found the accused along with gunny bag at Lalbaug bus stand and the person who has filed the complaint. He has deposed that the police had found CR.A/543/2000 10/13 JUDGMENT Coffee straw of 18.5 kg and the price thereof was about Rs.850/-. However, he is silent along with the panchas regarding the seal and other procedure as to how the thread, needle, lac, seal, etc. were brought. He has stated that the panchas are his own men of confidence and he has also admitted that he went for the purpose of bringing weighing scale, etc. and for that he had gone in a jeep. He has proved his complaint. 6.2 The prosecution has examined Gopaldas Girdharlal Shah (PW4- Exh.10) who is a businessman and he had weighed the muddamal article at Lalbaug bus stand. He has supported the case of prosecution. 6.3 The prosecution has examined Bharatsinh Balvantsinh (PW5- Exh.11), who is police constable. Acording to the prosecution he was accompanied with PSI Shri F.B.Patel and other police personnel in patrolling at the time of incident and in his presence the search and seizure has taken place. 6.4 Laxmanbhai Bhaljibhai, PSI(PW6) was examined at Exh.16, Shri Phulabhai Barbhai Patel, Police Constable (Exh.7) was examined at Exh.17 and they have supported the case of prosecution. 6.5 We have minutely gone through the above oral as well as CR.A/543/2000 11/13 JUDGMENT documentary evidence and have found that at the initial stage the required procedure has been followed by the prosecution, but thereafter when the Muddamal reached to the police station there is no evidence worth the name which satisfies the conscience of the court that there was no opportunity to anybody either in the police station or in between to tamper with the muddamal. It is also required to be noted that there is no evidence worth the name which proves that as to who brought the thread, needle, lac, seal from Godhra Town Police Station. The prosecution has remained silent throughout about this aspect. Not only the prosecution has failed in not examining the PSO of the Police Station who received the muddamal but also the person who alleged to have taken the muddamal from Police Station to FSL. Not a single person has been examined and not a single register has been proved which satisfies the conscious of the court about the aforesaid aspect. There is no evidence at all as to in whose custody the muddamal was kept in the police station and whether it was in the same condition when it was sent for laboratory inspection. 6.6 There is also no evidence worth the name to show whether the muddamal had remained in safe custody for a long period in the police station till the same was sent to FSL. As per the evidence on record the muddamal has been seized on 12th August 1998 and the same has CR.A/543/2000 12/13 JUDGMENT been reached at FSL on 26.9.1998. Practically there are about 41 days and there is no evidence to show that the muddamal article was under safe custody during this period and the prosecution has not thought it fit to examine any person in this regard at any point of time. As stated above, neither the person under whose custody the muddamal has remained nor the person who has taken the muddamal to FSL has been examined. 6.7 In view of the above fact what is established is that there is no evidence worth the name which satisfies the conscience of the court that from the date of the seizure of the muddamal till it has reached the FSL, it has remained in safe custody and there was no opportunity to tamper with the same. In this regard the law is well settled and keeping the above aspect in mind when the prosecution fails to prove the above aspect of the matter, benefit of doubt is required to be given to the accused who has already undergone sentence of more than nine and half years. 6.8 Apart from the said fact, we have also kept reliance upon the aforesaid judgement which gives support to the case of the appellant. Under the circumstances we are of the opinion that benefit of doubt is required to be given to the appellant and as a consequence the appeal CR.A/543/2000 13/13 JUDGMENT deserves to be allowed. 7.0 In the premises aforesaid, the appeal is allowed. The judgement and order of conviction and sentence dated 1st September 1999 passed by the learned Additional Sessions Judge, Panchmahals at Godhra in Special Case No.7 of 1998 (Narcotic) is quashed and set aside. The appellant is ordered to be set at liberty forthwith, if not required in any other offence. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar