IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 484 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- MAHMAD AMIN ABDUL KHALIQ Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 484 of 1999 MR JM BUDDHBHATTI for Petitioner No. 1 THROUGH JAIL for Petitioner No. 1 MR BY MANDKAD APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE H.H.MEHTA Date of decision: 08/07/2002 ORAL JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) #. Original accused No. 1 - Mahmad Amin Abdul Khaliq Bhatt of Sessions Case No. 10 of 1997 has, by preferring this appeal under Section 374 (2) of the Criminal Procedure Code, 1973 (for short "Cr.P.C.") challenged the correctness and legality of Judgement Ex.86 dated 25.2.1999 rendered by the Additional Sessions Judge, Court No. 16, City Civil Court, Ahmedabad rendered in Sessions Case No.10 of 1997 by which, he has been convicted for an offence punishable under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" for short) and sentenced to undergo R.I. for 12 years and to pay a fine of Rs.2 lacs and in default of fine, to undergo further R.I. for one year. #. The facts leading to this present appeal in a nutshell are as follows :- 2.1 On or about 17th October, 1996, the complainant Shri R.H. Rathod, Police Inspector, Crime Branch, Ahmedabad City was present on duty, in his office. At about 8 A.M. his colleague P.S.I. Shri A.F. Sindhi and P.S.I. Shri C.N. Rajput disclosed to him a secret information that one jeep bearing No. DHD-1658 of covered body being driven by one Kashmiri person was to enter into Ahmedabad City via Ahmedabad-Sarkhej High way road, by passing Vasna Octroi Cabin. That secret information was to the effect that that Kashmiri person was to import illegally "Charas" in big quantity in bulk from Kashmir and that person was to arrive at during the period from 10-00 A.M. to 12-00 noon. 2.2 The complainant made a note of that secret information on one piece of paper. Information with regard to that secret information was given by complainant to his superior D.C.B.. It was decided to keep close watch by making a patrolling just near Vasna Bus stop, Opp. "Dev Darshan Flats". Therefore, complainant called two persons to act as panch witnesses. They were made to understand about the information and raid, which was to be made with regard to aforesaid jeep. The police persons and panch witnesses had taken search of each other inter-se. No contraband article was found from either the police persons or the panch witnesses. A preliminary panchnama was drawn for such formalities performed during the period from 08.20 AM to 08.50 AM before proceeding further to Vasna Bus Stand. 2.3 Police persons and panch witnesses by driving in Gypsy vehicle arrived at "Dev Darshan" Complex. Complainant parked the police vehicle just in one corner near Dev Darshan Complex in such a way that car was facing road side. The police persons and panch witnesses took their respective positions on the road. Police Constable Abdul Majid Yasinkhan Pathan stood at a distance of 150 meters from that place where the complainant was standing. That police constable Abdul Majid Pathan was directed to give signal as and when he finds jeep bearing No. DHD-1658 coming from Vasna Octroi Cabin side. 2.4 After about one hour, one jeep of covered body was found coming from Vasna Bus Stand side. Police Constable Pathan gave a signal on seeing the jeep, as per directions given to him earlier. The complainant had shown that jeep to the panch witnesses. The number of the jeep i.e. DHD-1658 was noted down by the complainant and his staff members in presence of panch witnesses. On jeep coming to a halt condition, it was found that one person was found sitting on the driver's seat. That person was asked to stop the jeep. He was asked to give his name and address. That person gave his name as Mahmad. Amin Abdul Khaliq Pathan, resident of Srinagar (present appellant). He has informed of about the information with regard to narcotic substance and other contraband articles like "Charas", being carried / transported in his jeep. He was informed of about his right to be searched for his person as well as jeep in presence of either Executive Magistrate or any Gazetted officer other than officer of police department. Person sitting on driver's seat of jeep No. DHD-1658 declined to exercise said right. Thereafter, the complainant and members of raiding party and panch witnesses gave their respective introductions to the appellant. He was also asked to take search of police persons as well as panch witnesses, if he wanted to do so. He declined to take such search. Thereafter, a search of 'person' of appellant was made in presence of panch witnesses. On making search, one driving licence, currency notes of Rs.1320/-, bills for purchase of diesel for vehicle No. DHD - 1658 and other bills were found from the appellant. Thereafter, on making examination of jeep, it was found that portion beneath the driver's seat of the jeep, was giving a bitter smell of "Charas". The appellant was asked to open the portion beneath his seat. He opened that portion of seat by loosening nuts and bolts. It was found that there were about five packets arranged in a line in portion just beneath the driver's seat. Out of five packets, four packets were found wrapped in news paper and in one packet, one lump of black coloured substance was found. Thereafter, all the four packets were opened and it was found that each packet was containing a lump of black coloured solid substance. Mean while, one Scientific Officer Shri G.D. Sharma of Forensic Science Laboratory (hereinafter referred to as "F.S.L" for short) arrived at the spot and he gave his preliminary opinion that, that substance was "Charas". The appellant was asked as to from which source, he brought that "Charas". The appellant answered that he had brought that substance from Kashmir. That substance was weighed and it was found that it was weighing about 48.500 Kgs. and its price was estimated at Rs.14,55,000/- (Rs. Fourteen lacs Fiftyfive Thousand only). Thereafter, representative samples of that "Charas" was taken as per the procedure prescribed. That samples were properly packed and duly sealed with seal of Inspector of Police, Crime Branch, Ahmedabad City. Thereafter, panchnama in detail was drawn and it was completed at about 15.30 hours. The appellant was arrested and a written information with regard to grounds of his arrest was given to him. On making interrogation of appellant, he informed the police that another person who was present there in the jeep was Basir Omar Rasulbhai Shaikh (Accused No.2) (who is not before this Court). Necessary report was also made to the Metropolitan Magistrate. Thereafter, complainant prepared his complaint with the help of his Writer Constable Nanjibhai. The complainant then reached to D.C.B. Police Station and he took over the charge of P.S.O. from Head Constable Madhukar Patil. Thereafter at about 15=30 hrs. the complainant lodged his complaint in the police station. That complaint came to be registered as CR No.34/96. He made necessary entries in the station diary. Thereafter, he handed over muddamal articles and articles seized from appellant to Writer Head Constable Shri Gulabbhai. He also handed over the custody of appellant to P.S.O. Thereafter, P.S.I. Shri Sindhi was entrusted with further investigation of the case. On completion of investigation, on 07.01.1997 the police filed chargesheet against aforesaid two accused in the City Civil and Sessions Court. That chargesheet came to be registered as Sessions Case No. 10/97. #. The learned Additional Sessions Judge, Court No. 3, City Civil Court, Ahmedabad framed a charge Ex. 5 against both the accused on 26th August, 1987. On recording plea of accused, both the accused pleaded not guilty to the charge and claimed to be tried. 3.1 It appears from the record that during the pendency of the case, accused No. 2 had started to remain absent and later on he was declared to be as an absconder-accused and therefore, on 15.12.1998 learned APP before the Trial Court submitted an application Ex.54 with a request to separate the trial against accused No. 2 from trial against accused No. 1, supported with an affidavit of P.I. Shri M.B. Solanki of DCB Police Station, Ahmedabad. The learned Judge of the Trial Court after hearing the learned advocates for both the parties, passed an order dated 1.1.1999 below Application Ex.54, by which, trial of accused No. 2 was ordered to be separated from trial against accused No. 1 as per provisions of Section 317 (2) of the Cr.P.C. 3.2 Thereafter, prosecution examined eight witnesses to prove their case against appellant. The prosecution produced necessary documentary evidence also in support of their case against appellant. On completion of recording of evidence of prosecution witnesses, the learned Judge of the Trial Court brought to the notice of and explained to the appellant the circumstances appearing against him in the evidence led by the prosecution. The appellant has denied practically the entire case of the prosecution. In his further statement, he stated to the Court that he has no information with regard to contraband articles seized from the jeep. He has admitted that in his bag, there were about two to three shirts, his licence, identity card and some currency notes. He has also stated in his further statements that jeep was not being driven by him but it was being driven by Basir (accused No. 2). In the last question put him in his further statement u/s. 313 Cr.P.C. he has submitted his defence that on the date of incident he had gone to house of his friend residing in Sarkhej area. He had put up at his friend's house on the previous night and on the next day, i.e. on the date of incident, in the morning on foot, he came on Sarkhej Road. He had to go towards "Tran Darwaja" (Three gates) area and therefore, he, by showing a signal by raising hands, made to halt one jeep. On that day, he was not knowing the name of the driver, who was driving the jeep but later on he knew the name of driver i.e. Basir (accused No. 2). Thereafter, he took his seat in the jeep. At that time, he had a bag which could be placed on his shoulder. Thereafter, at the place of scene of offence, jeep was made to halt. He came to know that the persons who made the jeep to halt were police persons. Thereafter, Basir (accused No. 2 ) got down from the jeep. He had some talk with police persons. Police persons allowed him to go away. Meanwhile he was sitting in the jeep. Police persons, thereafter, took him on the road. He was severely beaten by the police officers. Thereafter, he was taken to police station. He further stated that he was not knowing Gujarati and therefore, he was not knowing about procedure followed by police. He was never told for search being made in presence of a Magistrate. Jeep was being driven by Basir and that Jeep was not of his ownership. He is not knowing anything about the muddamal articles seized. Lastly, he stated in his further statement that a false case has been lodged against him. Immediately, thereafter, the learned Judge of the Trial Court has made an endorsement below further statement of accused that as per say of accused No. 1, he is not knowing Gujarati and therefore, all the questions put in further statements were asked in Hindi language to accused No. 1 in presence of his advocate and whatever the replies were given by the accused No. 1, were given by him in Hindi and court translated that replies and same were recorded in the further statement. Thereafter, learned Judge of the Trial Court heard the arguments of the learned advocates of both the parties and after appreciating the evidence led by the prosecution, she came to a conclusion that accused No. 1 was found to have in possession of 48.500 Kg. Charas illegally in the jeep bearing registration No. DHD 1658 and thereby, he has committed an offence punishable under Section 8 read with Section 20 of the NDPS Act. Thereafter, the learned Judge of the Trial Court rendered her judgement of conviction on 24.2.1999. Thereafter, the accused No. 1 was heard on the point of quantum of sentence and thereafter, the learned Judge of the Trial Court passed an order of conviction and sentence on 25.2.1999 by convicting the accused No. 1 to suffer R.I. for 12 years and to pay a fine of Rs. 2 lacs and in default of fine, to undergo further R.I. for one year. #. Being aggrieved against and dissatisfied of the said judgement of conviction and sentence, the original accused No. 1 has preferred this present appeal. #. Shri J.M. Buddhbhatti, learned advocate for the appellant has taken us through the entire record of oral as well as documentary evidence and impugned judgment challenged in this appeal. We have heard learned advocate Shri J.M. Buddhbhatti, for the appellant and Mr. B.Y. Mankad, learned APP for the respondent - State. #. Shri J.M. Buddhbhatti, learned advocate for the appellant has taken two contentions for challenging the judgement of conviction and sentence. (i) It is the case of appellant from the very beginning that he is not knowing Gujarati and that he knows only Kashmiri Hindi and therefore, whatever procedure followed by the police while searching the jeep and recovering the articles from Jeep as well as person of appellant No. 1, was not made known to the appellant in Hindi language and therefore, he knows nothing about the information given to him for his right to be searched in presence of either Gazetted officer or a Magistrate. He has further argued that looking to the evidence given by police officers and the documentary evidence, we find that all the procedure was followed in Gujarati and therefore, a serious prejudice has been caused to the appellant as a result of failure on the part of the police officer to inform him about his right to be searched in presence of either Gazetted officer or Magistrate. He has also strenuously argued that this is a case in which, provisions of Section 50 of the NDPS Act are not complied with and therefore, the impugned judgement is bad, in eye of law and therefore this appeal should be allowed and appellant should be acquitted. (ii) The second contention of Mr. Buddhbhatti, the learned advocate for the appellant is to the effect that the learned defence advocate for appellant, who represented the appellant in the Trial Court had submitted one application Ex. 43 on 1st September, 1998 with a request to court to appoint one interpreter, who can translate the deposition of each witness from Gujarati to English and Kashmiri Hindi language. That application was given on the grounds that accused No. 1 is belonging to Kashmir and he is unable to read and write Gujarati and further that he is not able to read and write Hindi. That application Ex. 43 was heard and decided on merits on 1st September, 1998. As the learned Judge of the Trial Court rejected that application Exh.43, accused No. 1 has been denied his valuable right to be defended properly. He has further argued that the learned Judge of the Trial Court, when she recorded further statement of the accused under Section 313 of the Cr.P.C., put a specific note at the bottom of further statement on 11.2.1999 that as per say of accused No. 1, he is not knowing Gujarati and therefore, all the questions put to him in further statement were asked to accused No. 1 in Hindi in presence of his advocate and whatever replies were given by accused, were given in Hindi and that replies were translated by the Court and as a result of such translation is being made, the said statement of the accused has been recorded. Shri Buddhbhatti has argued that a serious prejudice has been caused to appellant because as per his request, vide application Ex.43 services of interpreter were not taken by the learned Judge of the Trial Court as a result of which, he could not understand the depositions of witnesses recorded in Gujarati. He further argued that as a result of such failure on the part of the Trial Court, he could not give proper instructions to his advocate and thereby, a prejudice has been caused to him and on this count, the impugned judgement is null and void and on the basis of such judgment, the appellant could not be convicted and sentenced. He has further argued that looking to aforesaid contentions, this appeal deserves to be allowed and appellant be acquitted of the offences for which, the charge has been framed. #. Shri B.Y. Mankad, learned APP for Respondent State has supported the judgement of the trial Court. He has argued that when the charge was framed on 26th August, 1997, the appellant did not disclose to the court that he is not knowing Gujarati. He has further argued that though the application Ex. 43 was given for an appointment of interpreter, the learned Judge of the Trial Court by giving reasons passed a judicial order and rejected the said application. The said judicial order passed below application Ex. 43 is at pages No. 237 to 241 in paper book. From the record, it seems that said order has not been challenged by the appellant and that judicial order stands as it is. He has further argued that subsequent to recording plea of accused and after framing charge, the accused No. 1 submitted an application Ex. 10 on 4.12.1997 by which, he requested the trial Court to render a legal aid for his defence. By order dated 27.12.1997 vide Ex.13, one practising advocate Shri V.T.Aacharya was appointed as an advocate to defend accused No. 1 and that appointment was made as per the provisions of para 126 of the Criminal Manual. From the record, it appears that, the appellant has been defended right from the beginning to end of trial through this advocate Shri V.T. Aacharya and therefore, his case has been properly defended. Under the circumstances, it cannot be said that prejudice has been caused to appellant because of that fact that interpreter was not appointed as per his request. Shri Mankad, learned APP has further argued that at the best, it can be said to be a mere irregularity and said irregularity can be cured under Section 465 of the Cr.P.C. In support of his arguments, Shri Mankad has cited two authorities. (i) CHHOTU VS. STATE OF GUJARAT, reported in AIR, 1967 Gujarat p.115 and (ii) SHIV NARAYAN KABRA VS. STATE OF MADRAS, reported in AIR 1967, SC, p.986. Lastly, he requested this Court that there is no error committed by learned Judge of the Trial Court and looking to the contentions taken by Shri Buddhbhatti in no case, it can be said that the learned Judge has committed an error in convicting and sentencing the accused and therefore, this appeal deserves to be dismissed confirming the impugned judgement. #. We have anxiously considered the submissions made by the learned advocates for the parties. We have reappreciated the evidence led by the prosecution. 8.1 First, we will consider the contention of Shri Buddhbhatti,learned advocate for the appellant on the point that when search of jeep was made, the complainant and the members of the raiding party carried out the procedure in Gujarati and that panchnama was also drawn in Gujarati and as accused is not knowing Gujarati, it is not proved by the prosecution that provisions of Section 50 of the NDPS Act were complied with before search. It may be noted that a secret information was received by the complainant that one person was to bring narcotic substance by a jeep with covered body. That information was reduced into writing. Copy of that information was sent to a superior officer of complainant. That copy is at Ex.62. As per this Ex.62, it is clear that the complainant had received an information that one person from Kashmir was to import illegal Charas in bulk and big quantity for the purpose of business in Ahmedabad and for that, that person was to enter into Ahmedabad City by jeep No. DHD-1658 by travelling on Sarkhej High way road via Vasna Octroi Cabin. From this Ex.62, two things were certain (i) narcotic substance namely Charas was to be imported in a bulk and big quantity by a jeep bearing number DHD - 1658 and (ii) that quantity of Charas was being brought from Kashmir to Ahmedabad for business purpose and therefore, concentration of complainant was to search jeep and not the "person" of that man of Kashmir. There is no dispute with regard to fact that on 17.10.1996 a preliminary panchnama was drawn during the period from 8.20 a.m. to 8.50 a.m. The complainant and members of his raiding party reached to Dev Darshan Complex, near Vasna Octroi Cabin. One hour thereafter, jeep came and it was made to halt and accused was found sitting on the driver's seat of jeep. As per the answer given to last question put in his further statement, accused No. 1 admitted that he was sitting in the jeep. As per his defence, the absconding accused Basir was sitting on the driver's seat of the jeep. Naturally, if the big quantity of charas in bulk was suspected to be brought in jeep, question does not arise for search of "person" of accused. Section 50 of the NDPS Act is applicable to only case, in which, "person" of the suspect is to be searched. For a vehicle, provisions of Section 49 of the NDPS Act are applicable. This position is made clear in case of DASHRATHBHAI GOVINDBHAI SHAH AND ANOTHER VS. STATE OF GUJARAT, reported in 1998 (2) GLH, p.790. 8.2 Shri J.M. Buddhbhatti, learned advocate for the appellant has argued that in this case "person" of the appellant was searched. It is an admitted fact that no contraband article was found from the "person" of the appellant and therefore, question does not arise for making appellant known about his right to be searched in presence of either Gazetted Officer or Magistrate. In this case, the complainant has deposed that the appellant was informed of by him that they wanted to search jeep as they had information that certain quantity of charas was being brought in jeep and for that a search was to be made. They also informed of the appellant that necessary arrangement could be made, if search was required to be made by him in presence of either Executive Magistrate or a Gazetted Officer. Shri Buddhbhatti has argued that information with regard to right of appellant to be searched in presence of Gazetted Officer or Magistrate, was not given to him in Hindi and therefore, even if, information was given to him in Gujarati, it cannot be said that provisions of Section 50 were complied with. When complainant had deposed that he informed of the appellant about his right to be searched in presence of Gazetted Officer or Magistrate, then that fact is