CR.A/951/2000 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 951 of 2000 With CRIMINAL APPEAL No. 1145 of 2000 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? ============================================================== JANGREJKHAN FIROZKHAN PATHAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ============================================================== Appearance : CRIMINAL APPEAL No. 951 of 2000 MR EE SAIYED for the Appellant. MR MHM SHAIKH for the Appellant. MR ND GOHIL, ADDITIONAL PUBLIC PROSECUTOR for the Opponent. CRIMINAL APPEAL No. 1145 of 2000 MR MR PRAJAPATI for the Appellant MR ND GOHIL, ADDITIONAL PUBLIC PROSECUTOR for the Opponent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 01/09/2005 CR.A/951/2000 2/35 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) 1. Both the above numbered appeals are directed against judgment dated September 27, 2000, rendered by the learned Additional Sessions Judge, Court No. 8, Ahmedabad City in Sessions Case No. 236 of 1999 by which the appellant in Criminal Appeal No. 951 of 2000, who was original accused No. 2 in Sessions Case No. 236 of 1999, as well as appellant in Criminal No. 1145 of 2000, who was original accused No. 1 in Sessions Case No. 236 of 1999, have been convicted under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the Act”)and each sentenced to RI for 11 years and fine of Rs.1,00,000/- (Rupees One Lakh Only); in default, RI for 3 months, for commission of offence punishable under Section 21 of the Act as well as RI for 11 years and fine of Rs.1,00,000/- (Rupees One Lakh Only); in default RI for 3 months, for commission of offence punishable under Section 29 of the Act. As both the appeals arise out of the common judgment dated September 27, 2000, rendered in Sessions Case No. 236 of 1999, this Court proposes to dispose them of by this common judgment. CR.A/951/2000 3/35 JUDGMENT 2. The facts emerging from the record of the case are as under:- On or about July 1999, Mr. M.N.Vyas was discharging duties as Police Constable in Narcotic Cell of DCB, Ahmedabad City. On July 3, 1999, he received an information that a person named Chunilal Punmaji Marwadi wearing Red and Green coloured shirt with design and Grey coloured pant, is dealing in Brown Sugar, and that one Jangrejkhan Firozkhan Pathan, residing behind Sangam Cinema, Sarkhej, would deliver quantity of Brown Sugar to him during night near Visama, constructed by the Corporation, on Dudheshwar Road. The Police Constable, therefore, conveyed the information received by him to Mr. T. A. Barot, who was then PI of Narcotic Cell, DCB, Ahmedabad City. On learning about this information from Police Constable Mr. Vyas, PI Mr. Barot summoned Police Sub-Inspector Mr. G. H. Khan as well as Sub-Inspector Mr. P. P. Bhatt and other police personnel and asked them to be ready for raid to be carried out. The information received was reduced into writing and necessary entry was made in the register maintained at the Police Station. Mr.Barot also forwarded report under Section 42(2) of the Act to the Assistant Commissioner of Police, who was his immediate official superior. He, thereafter, asked Police CR.A/951/2000 4/35 JUDGMENT Constable Nizammudin Burhanmian to requistion services of two panch-witnesses. Accordingly, Police Constable Nizammudin Burhanmian requisitioned services of two panch-witnesses, namely, (1) Anand Daulal Srivastava and (1) Mohd. Farooq Mohd. Siddique Shaikh. On arrival of the panch-witnesses, Mr. Barot ascertained their names, addresses, etc. and introduced them to PSI Mr. Khan, PSI Mr. Bhatt, etc. Mr. Barot conveyed to the panch-witnesses the information, which was received by him from Police Constable Mr. M. N. Vyas, and tried to know whether they were willing to act as panch-witnesses. As both the witnesses agreed to act as panch-witnesses, the first part of the panchnama was drawn in the office of Mr. Barot itself and necessary preparation was made for the purpose of carrying out the raid. Before proceeding to the spot indicated in the information, materials needed in a raid, such as, twine, sealing wax, etc. were obtained and carried by the police personnel. Thereafter, the members of the raiding party proceeded towards Visama, situated on Dudheshwar Road in a Government vehicle from Gaekwad Haveli. The vehicle, in which the members of the raiding party proceeded, was parked near Gate of Maheshwari Mills in such a manner that it was not possible for any one to identify the same. Thereafter, the members of the raiding party CR.A/951/2000 5/35 JUDGMENT proceeded on foot towards Visama, which is situated on Dudheshwar Road. A watch was maintained and after about 20 minutes, the person, whose description was given in the information, was spotted coming towards Visama from its north. Police Constable Mr. Mukeshkumar Natvarlal Vyas identified him as Chunilal Punmaji Marwadi i.e. the appellant in Criminal Appeal No. 1145 of 2000. After arrival at Visama, Chunilal occupied a seat constructed in Visama. After about 10 minutes, another person, wearing full sleeve shirt having coloured checks and blue coloured pant, arrived and went to the place where Chunilal Marwadi was sitting. Police Constable Mukesh Kumar identified the said person as Jangrejkhan Pathan i.e. appellant in Criminal appeal No. 951 of 2000. The movements of both the persons were closely monitored by the members of the raiding party. It was found that they were talking inter se. The one, who had come to Visama later on, i.e. Jangrejkhan Pathan took out something from right-hand side pocket of his pant and handed-over the same to Chunilal, and Chunilal placed the article, handed-over by Jangrejkhan, in left side pocket of his pant whereas Chunilal also gave something to Jangrejkhan which was accepted by Jangrejkhan. Thereafter, the members of the raiding party rushed at the Visama and apprehended both of them. They were, thereafter, taken CR.A/951/2000 6/35 JUDGMENT near an electric pole situated on west of Visama. In the presence of panch-witnesses, both the persons apprehended, were interrogated. On interrogation, one of the persons disclosed that his name was Chunilal Punmaji Marwadi of Chandlodia Village and that he was residing opposite Rampeer Temple, Mahendikuva, Dudheshwar, whereas another disclosed his name to be Jangrejkhan Firozkhan Pathan, residing behind Sangam Cinema, Sarkhej. PI Mr. Barot conveyed the information received by him to both of them and told that it was necessary to search their persons. Before effecting search of persons of the appellants, PI Mr. Barot offered both of them to be searched in presence of a Magistrate or a Gazetted Officer not belonging to Police Department, if so desired, but the offer made by Mr. Barot was declined by both of them. Two different memorandums indicating that provisions of Section 50 of the Act were complied with were prepared and served individually to the accused. Thereafter, the person of each accused was searched in presence of panch-witnesses. The search of person of Chunilal Punmaji Marwadi resulted into find of Rs.700/- (Rupees Seven Hundred Only) from back pocket of pant put on by him as well as polythene bag, which was heat sealed from left hand pocket of the pant put on by him. Chunilal Marwadi was asked as to what was the substance CR.A/951/2000 7/35 JUDGMENT placed in transparent plastic bag found from his pocket and he replied that it was Brown Sugar. Thereafter, person of Jangrejkhan Firozkhan Pathan was searched. Search of his person resulted into find of Rs. 376/- (Rupees Three Hundred And Seventy-Six Only) from pocket of shirt put on by him as well as two small plastic-bags, which were heat-sealed, in which grey coloured powder was placed. On interrogation, Jangrejkhan also informed PI Mr. Barot that the small plastic-bags contained Brown Sugar. PI Mr. Barot demanded pass or permit authorising them to possess Brown Sugar, but none could be produced by any of them. As it was necessary to carry out the investigation in a scientific manner, PI Mr.Barot asked his officer to contact expert of FSL on telephone and request the expert to come to the place. He also asked Police Sub-Inspector Mr. Bhatt to deliver a yadi to expert of FSL, asking him to come to the spot for the purpose of analysis of the powder found from the possession of two persons. Mr. Barot also asked Head Constable Kishoresinh to bring a person to weigh the substance found. Accordingly, Head Constable Kishoresingh requisitioned the services of one Bhavarsinh Veraji Rajput of Jamalpur. He weighed the substance found from possession of both the persons. The weight of the offending substance with polythene bag found from the CR.A/951/2000 8/35 JUDGMENT possession of Chunilal, was found to be 6 Gms and was marked as Mark 'A', whereas weight of bag found from possession of Jangrejkhan containing Brown Sugar, was found to be 4 Grms, which was marked as Mark 'B', and weight of another bag, which was found from his possession, was ascertained to be 3 Grams and 500 Milligrams and was marked as Mark 'C'. PI Mr. Barot had also arranged to inform Mr. Subhash Trivedi, who was the then ACP. Mr. Subhash Trivedi arrived at the spot when the substances found from the two accused were being weighed. Pursuant to receipt of intimation, Mr. G. D. Sharma, who was an expert serving in Forensic Science Laboratory (FSL), also arrived at the spot. He took out little quantity of powder from each bag to ascertain its character and nature and after carrying out preliminary tests, he opined that the substance found was Brown Sugar. Moreover, members of the raiding party, after smelling substances found, opined that the substance was Brown Sugar. The total weight of three plastic-bags with Brown Sugar was found to be 13 Grams and 500 Milligrams and value of Brown Sugar was estimated to be Rs.1,35,000/= (Rupees One Lakh Thirty Five Thousand Only). The bags were heat sealed and placed in a plastic box. Slip bearing signatures of panch-witnesses and PI Mr. Barot was affixed on the box. The box was, CR.A/951/2000 9/35 JUDGMENT thereafter, tied with twine and seal, bearing impression of “PI NDPS Cell, DCB, Ahmedabad City”, which was in English language, was applied thereon. The total amount of Rs. 1,076/- (Rupees One Thousand And Seventy-Six Only), which was found from both the accused, was also seized. Jangrejkhan Pathan was interrogated by PI Mr. Barot and he disclosed that he had obtained quantity of Brown Sugar from Sajid Khan @ Langdo of Sarkhej. The written Report given by expert of FSL, indicating that substance analysed was Brown Sugar, was obtained. Both the accused were served with Seizure Memo and thumb impression of accused Chunilal as well as signature of Jangrejkhan was obtained on office copy of the Seizure Memo. As it was prima facie indicated that the appellants were involved in commission of offence punishable under the Act, they were arrested and were served with Arrest Memos. After service of Arrest Memos on the accused, the Police Sub-Inspector Mr. Gulamhussain Hamedkhan Khan lodged his complaint before PI Mr. Barot. He handed-over the muddamal seized, the complaint, the panchnama, etc. to PSO of DCB Crime Branch, Ahmedabad. On the basis of complaint of Mr. Khan, C.R. No. 5015 of 1999 was registered against the accused for commission of offences punishable under Sections 21 and 29 of the Act. The complaint lodged by PI Mr. Khan was handed-over to CR.A/951/2000 10/35 JUDGMENT PSI Mr. R. B. Joshi for investigation. The Investigating Officer made necessary report to the Assistant Commissioner of Police, Crime Branch, Ahmedabad City, as required by Section 57 of the Act. He recorded statements of those persons who were found conversant with the facts of the case. Necessary intimation was given to the relatives of the accused that the accused were arrested for commission of offences punishable under the Act. On July 4, 1999, PSO Ganpatsinh handed-over the muddamal and other articles for safe custody to Rumalji Shivaji Sodha, who was Crime Writer Head at Crime Branch, DCB Ahmedabad City. Mr. Sodha made necessary entry in the Register maintained at the Police Station for having received the muddamal and kept the same in safe custody. On July 5, 1999, Crime Writer Head Mr. Sodha handed-over the muddamal to Head Constable Kishoresinh Bhimsinh to deliver the same to FSL for analysis. Accordingly, Head Constable Kishoresinh Bhimsinh handed-over the muddamal to FSL for analysis. The substances were analysed by FSL. The Report indicated that the substances analysed were Brown Sugar within the meaning of the Act. On completion of investigation, the two accused were charge- sheeted in the Court of learned Special Judge, Ahmedabad for commission of offence punishable under Section 21 read with Section 29 of the Act. CR.A/951/2000 11/35 JUDGMENT 3. The learned Additional Sessions Judge, Ahmedabad, to whom the case was made-over for trial, framed necessary charge against both the accused at Exh. 1. It was read- over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) panch, Mohd. Farooq Mohd. Siddique Shaikh as PW 1, at Exh. 11; (2) Police Constable Mr. Mukeshkumar Natvarlal Vyas as PW 2, at Exh. 14; (3) PSI Mr. Gulamhussain Hamedkhan Khan as PW 3, at Exh. 16; (4) Constable Ganpatsinh Samantsinh as PW 4, at Exh. 18; (5) Police Sub-Inspector Mr. Tarunbhai Amratbhai Barot as PW 5, at Exh. 24; (6) Crime Writer Head Mr. Rumalji Shivaji Sodha as PW 6, at Exh. 38; (7) Head Constable Kishoresinh Bhimsinh Parmar as PW 7, at Exh. 42; and (8) Investigating Officer PSI Mr. Rameshkumar Bhavanishankar Joshi as PW 8, at Exh. 44, to prove its case against the two accused. The prosecution also produced documentary evidence, such as, the panchnama, indicating search of persons of two accused as well as seizure of Brown Sugar, at Exh. 13; the complaint lodged by PSI Mr. Gulamhussain Hamedkhan Khan, at Exh. 17; necessary extract of entry, indicating that information received was reduced into writing, at Exh. 20; intimation by PI DCB to officer in- charge of DCB Ahmedabad City, to register offences CR.A/951/2000 12/35 JUDGMENT pursuant to complaint of PSI Mr. Khan, at Exh. 21; yadi of articles seized, at Exh. 22; report by PI Mr. Barot to Assistant Commissioner of Police under Section 42 (2) of the Act, at Exh. 25; memorandum, indicating compliance of Section 50 of the Act, at Exh. 27; report of Scientific Officer, Mobile Investigation Van, indicating that the articles seized were Brown Sugar, at Exh. 29; seizure Memo, at Exh. 30; grounds of arrest, communicated to the accused, at Exh. 31; arrest Memo of original accused No. 1, at Exh. 32; intimation to District Magistrate, Ahmedabad, about arrest of original accused No. 1, at Exh. 33; arrest Memo of original accused No. 2, at Exh. 34; intimation to District Magistrate, Ahmedabad, about arrest of original accused No. 2, at Exh. 35; intimation to relative of accused No. 2 that he was arrested for having committed offences under the provisions of the Act, at Exh. 36; memorandum, indicating that muddamal with the offending substances were sized, at Exh. 40; report to Assistant Commissioner of Police made under Section 57 of the Act, at Exh. 46; certificate issued by Bhanversinh Veraji for having weighed substances, at Exh. 47; receipt by FSL for having received the muddamal for analysis at Exh. 49; report of analysis, at Exh. 52; the panchnama, indicating search of house of accused Jangrejkhan, at Exh. 61; etc., in support of its case CR.A/951/2000 13/35 JUDGMENT against the two accused. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to both the accused, 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 his further statement, accused No. 1 i.e. Chunilal claimed that few days prior to the day of incident, he was passing on Dudheshwar Road and at that time, a person riding a cycle, who was drunk, had dashed with him, as a result of which, he had scolded that person and that person had slapped him, telling him that he was policeman belonging to Crime Branch and would teach a lesson to him, and, therefore, on July 3, 1999, between 9.00 P.M. And 10.00 P.M., police personnel, wearing plain clothes had come and taken him in a Jeep and lodged false case against him. Accused No. 2, i.e. Jangrejkhan, in his further statement, claimed that on July 3, 1999, he was taking meals with his family at his house and a policeman had entered his house to inquire about one Abdul Salam, which was objected to by him, and, thereafter, about 7 to 8 police personnel had CR.A/951/2000 14/35 JUDGMENT entered his house forcibly and after beating him and his son, he was dragged out of the house and when this was objected to by his wife, she was abused after which he was taken to Crime Branch where a false case was lodged against him. In order to substantiate the defence, original accused No. 1 Chunilal Punmaji examined Rameshbhai Magaji Solanki as DW 1, at Exh. 57 as well as Govindbhai Sankarbhai Bodana as DW 2, at Exh. 58. Similarly, to substantiate his defence, accused Jangrejkhan examined Abdul Sattar Abdul Karim Shaikh as DW 1, at Exh. 60 as well as Valimohammed Amanatullah as DW 2, at Exh. 62 and Umedbhai Baheralibhai as DW 3, at Exh. 63 and also his wife, Jenab-bibi Jangrejkhan Patan as DW 4, at Exh. 64. 5. On appreciation of evidence adduced by the parties, the learned Judge held that it was proved by the prosecution that on July 4, 1999 at about 5.00 A.M. in the morning, accused No. 1 was found in possession of 6 Grams of Brown Sugar whereas accused No. 2 was found in possession of 7 Grams and 500 Milligrams of Brown Sugar at Mahendikuva, Dudheshwar Road, Ahmedabad, and committed offence punishable under the provisions of Section 21 and 29 of the Act. On scrutiny of the defence evidence, the CR.A/951/2000 15/35 JUDGMENT learned Judge found that the defence, that the accused were picked up from their respective residences because of enmity and were falsely implicated in the case, was not probabilised. In view of abovereferredto conclusions, the learned Judge has convicted the sole appellant in each appeal under Sections 21 and 29 of the Act and imposed sentences referred to earlier by judgment dated September 27, 2000, giving rise to abovenumbered two appeals. 6. Mr. E.E. Saiyyed, learned Counsel of the appellant in Criminal Appeal No. 951 of 2000 and Mr. M. R. Prajapati, learned Counsel of the appellant in Criminal Appeal No. 1145 of 2000, contended that the appellants were falsely implicated in the case, which is quite evident from the record as well as evidence adduced by the defence witnesses and, therefore, their conviction under Section 21 read with Section 29 deserves to be set aside. In order to substantiate this argument, it was pointed out from the record that an application dated September 18, 1999 was submitted by PSI Mr. RB Joshi, Crime Branch, Ahmedabad City, to learned Principal Judge, City Sessions Court, Ahmedabad City, with a request to issue warrant under Section 70 of the Code of Criminal Procedure, 1973 against absconding accused Sajid Khan and CR.A/951/2000 16/35 JUDGMENT though the record does not indicate that any order was passed by the learned Principal Judge on the application submitted by PSI Mr. Joshi, an arrest warrant was issued, which is quite evident from the order signed by Deputy Registrar, City Sessions Court, Ahmedabad on September 17, 1999 i.e. a day prior to filing of the application by PSI Mr. RB Joshi, which in turn, indicates that not only the record before the Court was fabricated, but false documents were prepared at the time of carrying out the raid to implicate the accused falsely, who are totally innocent and, therefore, the impugned judgment should be reversed. It was pleaded that Bhanversinh, who had weighed the substance, is not examined as one of the witnesses by the prosecution and in absence of his evidence, certificate issued by him that he had weighed the substances found from possession of the appellants, should not have been received in evidence at all and once Exh. 47, which is certificate allegedly issued by Bhanvarsinh, is taken out of consideration, no other evidence is adduced by the prosecution that the weight of substances found was the same, as indicated in the panchnama and, therefore, the appellants are entitled to acquittal. It was argued that non-examination of Bhanvarsinh has fatal effect on prosecution case, more particularly, when writings in documents, Exh. 47, differ CR.A/951/2000 17/35 JUDGMENT from signature appended thereto and, therefore, the appeals should be accepted. It was argued that a perusal of Exhs. 28 and 29 makes it evident that the letter, asking expert of FSL to come at the place where raid was carried out, to ascertain nature of the substances found from the possession of the appellants, was received by Mr. G. D. Sharma, whereas certificate, produced by the prosecution, indicting that substances seized were analysed on the spot and were prima facie ascertained to be Brown Sugar, does not bear signature of Mr. G.D. Sharma, as a result of which, the appellants are entitled to reasonable benefit of doubt. According to the learned Counsels of the appellants, the signature of Mr. G. D. Sharma, on Exh. 28, does not tally with the signature appended on document, which is produced on record of the case, at Exh. 29, and, therefore, the Court should come to the conclusion that a false case was foisted upon the appellants. As far as compliance of Section 42 (2)of the Act is concerned, it was argued that in fact, no report either under Section 42 (2) of the Act or Section 57 of the Act was sent to immediate official superior, as required by law nor provisions of Section 50 of the Act were complied with, but mere paper-work was done to show that those provisions were complied with and, therefore, the appellants, who are innocent, should be acquitted. CR.A/951/2000 18/35 JUDGMENT It was maintained that the testimony of Investigating Officer, Mr.R.B.Joshi, makes it very clear that he had not recorded statement of ACP Mr. Subhash Trivedi nor collected material to show that the so-called report, forwarded under Section 42 (2) and Section 57 of the Act, was in fact received by ACP Mr. Subhash Trivedi, and as there is non-compliance of mandatory provisions of the Act, the appeal should be allowed. It was further argued that non-examination of ACP Mr. Subhash Trivedi has also vitiating effect on prosecution case, entitling the appellants to have reasonable benefit of doubt. After referring to the testimony of Police Constable Mr. Mukesh Vyas, it was argued that there was no light in Visama and, therefore, the case of the prosecution that the appellant in Criminal Appeal No. 951 of 2000 had delivered Brown Sugar to the appellant in Criminal Appeal No. 1145 of 2000, or that raid was carried out and offending articles were found from persons of both the accused, should have been disbelieved by the learned Judge of the Trial Court. What was asserted was that the defence, that the appellants were falsely implicated in the case, stands completely probabilised by the evidence tendered by five defence witnesses and, therefore, the appeals should be accepted. Mr. M. R. Prajapati, learned Counsel of the appellant in Criminal Appeal No. 1145 of CR.A/951/2000