CR.A/896/1998 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 896 of 1998 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? ============================================================== STATE OF GUJARAT - Appellant Versus BANSILAL MAGRULAL PASWAN & ANOTHER - Respondents ============================================================== Appearance : MR KT DAVE, Additional Public Prosecutor for the Appellants. MR MJ BUDHDHBHATTI for the Respondents. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 30/11/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE H.B.ANTANI) 1. Instant appeal, filed by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 (“the Code”, for short), is directed against judgment dated CR.A/896/1998 2/34 JUDGMENT July 27, 1998 rendered by the learned Additional City Sessions Judge, Court No. 3, Ahmedabad in Sessions Case No. 174 of 1997, by which the respondents have been acquitted for the offences punishable under Section 20 (b) (i) read with Section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”, for short) as well as under Section 66 (1) (b) of the Bombay Prohibition Act, 1949. 2. The short facts emerging from the record of the case are stated hereinbelow: Mr. S. V. Tehlramani, Police Inspector, working in the State Narcotic Cell, CID, Crime Branch, Ahmedabad received information on June 7, 1997 that two persons residing in Santoshnagar slums situated in Kubernagar, near Sardarnagar Police Station area were in possession of ganja. On receipt of the information, he reduced the same into writing. He also made report of the same to his immediate higher official. Thereafter, he asked Head Constable Mr. K. A. Sathwara to requisition services of two panch-witnesses. Accordingly, two persons i.e. Hariram Murajmal Khemani and Prakash Vasudev Sindhi were summoned. They showed their willingness to work as CR.A/896/1998 3/34 JUDGMENT panch-witnesses. Therefore, the information received by PI Mr. Tehlramani was conveyed to them. PI Mr. Telhramani secured necessary material like seal, wax, twine, etc. for the purpose of carrying out the raid after which first part of panchnama was drawn. Thereafter, he proceeded in the Government vehicle along with the informant and others, including Mr. Modi, who was then ACP, to the place mentioned in the information received by him. On reaching Santoshnagar slums, they got down from the vehicle and the informant pointed out the house of the persons who were having possession of ganja. When PI Mr. Tehlramani went to the place shown by the informant, he found that two persons were sitting on a cot kept below the banyan tree outside the house. He interrogated them. They disclosed their names as: Bansilal Mangrulal Paswan i.e. respondent No. 1 and Dinanath Bansilal Paswan i.e. respondent No. 2. PI Mr.Tehlramani conveyed the information received by him to them and informed that it was necessary to search them. Before effecting the search of their persons, PI Mr.Tehlramani offered them to have the search in the presence of a Gazetted Officer. However, that offer was declined by the respondents. Thereupon, their persons were searched, but nothing incriminating was found from CR.A/896/1998 4/34 JUDGMENT their persons. Thereafter, the search of the house was carried out. It resulted into find of ganja kept in two different tins, one of which was bearing the inscription of the name of Dinanath. The substance found was ascertained to be ganja by smelling. PI Mr. Tehlramani demanded pass or permit from both the persons authorising to possess ganja, but they could not produce the same. Thereafter, ganja was weighed by Head Constable Gosai. Its weight was found to be 10.200 Kgs. From this quantity, two samples, each of 50 grams was drawn i.e. one to be sent to Forensic Science Laboratory (“FSL”, for short) for analysis and another to be treated as reserve sample. Each sample was placed in a tin and wrapped with cloth. Slips bearing signatures of panch-witnesses were affixed on the clothes and sealed having inscription of “PI NDPS GS CID, Ahmedabad”. During the search, ration- card was also found in which the names of respondents were mentioned. After completing the abovementioned formality, second part of panchnama was drawn. Thereafter, PI Mr. Tehlramani lodged his complaint and produced muddamal, panchnama, respondents, etc. before the Police Station Officer (PSO). The PSO registered the offences against the respondents and handed-over the investigation to Police Sub-Inspector Mr. M. M. Thakore. CR.A/896/1998 5/34 JUDGMENT On transfer of PSI Mr. Thakore, further investigation was made by PSI Mr. N.G. Bhatti. The statement of the persons, who were found to be conversant with the facts of the case, were recorded by the Investigating Officer. Muddamal sample was sent to FSL for analysis. The report of analysis indicated that muddamal analysed was ganja withing the meaning of the Act. On completion of investigation, chargesheet was filed against the respondents and they were produced before the learned Additional City Sessions Judge, Court No. 3, Ahmedabad. On the basis of chargesheet, Sessions Case No. 174 of 1997 was registered against the respondents. 3. The charge against the respondents was framed vide Exh. 2. The charge was read-over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined following witnesses to prove its case: (i) PW1 Suraj Visandas Tehlramani, at Exh. 8. (ii) PW2 Hariram Murajmal Khemani, at Exh. 19. (iii) PW3 Navinpuri Narsinhpuri Gosai, at Exh. 24. (iv) PW4 Atmaram Janardhan Marathe, at Exh. 26. (v) PW5 Chauhan Mohatsinh Govindsinh, at Exh. 28. (vi) PW6 Magansinh Mansinh Thakore, at Exh. 29. CR.A/896/1998 6/34 JUDGMENT (vii) PW7 Natvarsinh Javansinh Bhatti, at Exh. 36. The prosecution also placed reliance on documentary evidence in support of its case. They are as under: (i) Complaint given by Mr. Tehlramani, Police Inspector, Narcotic Cell, at Exh. 9. (ii) Letter addressed by PI Mr. Tehlramani to PSO, Sardarnagar Police Station, at Exh. 10. (iii) Information received by PI Mr. Tehlramani and forwarded to Police Superintendent, State Narcotic Cell, Ahmedabad, at Exh. 11. (iv) Resolution passed under Section 42 of the Act, at Exh. 12. (v) Report in respect of arrest of the accused, at Exh. 13. (vi) Seizure memo of the contraband item, at Exh. 14. (vii) Document indicating that the grounds of arrest were communicated to the accused, at Exh. 15. (viii) Resolution indicating that the provisions of Section 50 were complied with, at Exh. 16. (ix) Report forwarded to the Police Superintendent, State Narcotic Cell, CID, Crime Branch, Ahmedabad by PI Mr. Tehlramani, at Exh. CR.A/896/1998 7/34 JUDGMENT 17 (x) Document indicating that information received was reduced into writing, as required under Section 42 (1), at Exh. 18. (xi) Panchnama of the raid, at Exh. 20. 4. After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the respondents the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements, as required under Section 313 of the Code. The respondent No. 1, in his statement, claimed that his thumb impression was taken on Exhs. 15 and 16. He also claimed that the ration-card was not belonging to him. He further stated that no offer, as contemplated by Section 50 of the Act, was made to him. According to him, a false case was foisted upon him. The respondent No. 2 stated that he was arrested when he was passing on the road. It was further claimed by him that he was arrested from the Railway Station as he is residing near Naroda Station and was not knowing anything about seizure of contraband substance. However, no defence evidence was adduced by any of the respondents. CR.A/896/1998 8/34 JUDGMENT 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that no report, as contemplated under sub-section (2) of Section 42, was forwarded by PI Mr. Tehlramani to his immediate official superior and, therefore, there was breach of mandatory provisions contained in sub-section (2) of Section 42 of the Act. According to the learned Judge, the provisions contained in Section 55 of the Act were not complied with, inasmuch as the PSO, while keeping the contraband article in safe custody, failed to apply his seal. The learned Judge also held that provisions of Section 57 of the Act were not complied with by PI Mr. Tehlramani inasmuch as the report containing details of arrest and seizure was not forwarded by PI Mr. Tehlramani to his immediate official superior. It was further held by the learned Judge that the provisions contained in Section 102 (3) of the Code were not complied with and, therefore, the case of the prosecution was doubtful. The learned Judge also held that the respondents were neither the owner nor in possession of the house from which contraband article was seized. The learned Judge further held that the accused were not in conscious possession of the contraband article and were entitled to reasonable benefit of doubt. According to the learned Judge, CR.A/896/1998 9/34 JUDGMENT investigation was incomplete and / or inadequate and, therefore, the prosecution case was liable to be disbelieved. The learned Judge noticed that muddamal was not kept in safe custody which did not rule out the possibility of tampering with the same. The learned Judge further held that no independent witnesses were examined by the prosecution to bring home the guilt against the respondents and, therefore, they were entitled to be acquitted. In view of abovereferredto conclusions, the respondents have been acquitted by judgment dated June 27, 1998, giving rise to the present appeal. 6. This appeal was placed before the Division Bench, comprising M.S.Parikh and A.K.Trivedi, JJ. on March 19, 1999. After hearing the learned Additional Public Prosecutor for the State, the following order was passed: “Heard the learned APP for the Appellant- State. Perused the impugned judgment of acquittal for the offence charged against the respondents under the relevant provisions of the N.D.P.S. Act. Bearing in mind the peculiar facts of the case, we pass the following order: Leave granted. Appeal admitted. Bailable Warrants in the sum of Rs. 5000/- each with following conditions to issue: 1. The respondents will furnish their complete CR.A/896/1998 10/34 JUDGMENT address to the trial Court. 2. They will remain present before this Court as and when required. 3. They will report change in their addresses, if any, to the trial Court as well as to the Court.” 7. The record shows that though the respondents are duly served, they have not appeared either in person or through their lawyer. Having regard to the facts of the case, this Court was of the opinion that a Senior Advocate, practising in this Court, should be appointed to render legal assistance to the respondents. Accordingly, Mr. M. J. Budhdhbhatti was appointed to render legal assistance to the respondents and Mr.Bhudhdhbhatti has rendered valuable and competent legal assistance to the respondents. 8. Mr. K. T. Dave, learned Additional Public Prosecutor, representing the State submitted that the search and seizure was effected by PI Mr. Tehlramani, who was a Gazetted Officer and also an Empowered Officer withing the meaning of Section 41 (2) of the Act as a result of which, it was not necessary for him to forward any report to his immediate official superior within the meaning of Section 42 (2) of the Act and, therefore, the CR.A/896/1998 11/34 JUDGMENT learned Judge was not justified in coming to the conclusion that there was breach of provisions of Section 42 (2) of the Act. According to the learned Additional Public Prosecutor, the provisions of Section 55 of the Act are not applicable to the facts of the case and the learned Judge was not justified in coming to the conclusion that there was violation of provisions of Section 55 of the Act. The learned Additional Public Prosecutor further submitted that there was full compliance of the provisions of Section 57 of the Act and the learned Judge was not justified in holding that there was non-compliance of Section 57 of the Act. After referring to the provisions of Section 52-A of the Act, it was submitted that it is not applicable to the facts of the case at all and it is not understandable as to on what basis the learned Judge has come to the conclusion that there was breach of provisions of Section 52-A of the Act. The learned Additional Public Prosecutor further submitted that there was no breach of Section 102 (3) of the Code inasmuch as the factum of seizure was reported when the respondents were produced before the Court and an application for their police custody was made. The learned Additional Public Prosecutor further submitted that the finding recorded by the learned Judge, CR.A/896/1998 12/34 JUDGMENT that the respondents were neither the owners nor in possession of the house where the raid was carried out, is contrary to the weight of evidence on record and liable to be set aside. The learned Counsel also asserted that both the respondents were found in possession of contraband article and therefore, the learned Judge was not justified in coming to the conclusion that they were not in conscious possession of the same. The learned Additional Public Prosecutor further submitted that taking into account the entire oral and documentary evidence, the finding given by the learned Judge, that the investigation was insufficient, inadequate or not proper, is not justified and no benefit should have been granted to the respondents on those counts. The learned Additional Public Prosecutor contended that muddamal was kept in safe custody and reached FSL intact, as a result of which, the learned Judge was not justified in holding that there was possibility of tampering with the same. The learned Additional Public Prosecutor further submitted that the learned Judge was not justified in holding that as no independent witnesses were examined, the prosecution case was liable to be doubted more particularly when case of the prosecution was proved by reliable evidence of police CR.A/896/1998 13/34 JUDGMENT officials. According to the learned Additional Public Prosecutor, the learned Judge has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be allowed. 9. Mr. M. J. Budhdhbhatti, appearing for the respondents, submitted that the prosecution could not establish satisfactorily that the respondents were in possession of the house from which the contraband article was found and, therefore, acquittal should be confirmed. According to the learned Counsel, mandatory provisions of Section 42 (2), 50, 55, 57 of the Act as well as Section 102 (3) of the Code were not complied with by PI Mr. Tehlramani and, therefore, impugned judgment should be confirmed. The learned Advocate further submitted that the evidence shows that the panch was selected and, therefore, the learned Judge of the Trial Court, who had advantage of observing the demeanour of the witnesses, was justified in not placing reliance on his testimony while considering guilt or otherwise of the respondents. According to the learned Counsel, it could not be established by the prosecution that the respondents were in conscious possession of contraband article nor evidence could be led that respondent No. 2 had abetted CR.A/896/1998 14/34 JUDGMENT and/or aided respondent No. 1 in the commission of offence punishable under Section 20 (b) (i) or that they had conspired to commit offence punishable under the Act and, therefore, the appeal of the State against their acquittal should be dismissed. According to the learned Counsel for the respondents, as two views are possible, the judgment impugned in the appeal should be confirmed. It was argued that cogent and convincing reasons have been assigned by the learned Judge of the Trial Court for acquitting the respondents and as the learned Additional Public Prosecutor for the State has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed. 10. This Court has heard Mr. K. T. Dave, learned Additional Public Prosecutor for the State and Mr. M. J. Budhdhbhatti, learned Counsel of the respondents, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record with reference to broad and reasonable probabilities of the case. 11. On re-appreciation of the evidence on record, this CR.A/896/1998 15/34 JUDGMENT Court finds that Mr. Tehlramani was working as PI, CID Crime, Narcotic Cell, Ahmedabad and was a Gazetted Officer. In view of the Notification No. GH-L.14-NDS- 1087(i)-M dated June 15, 1987 issued by State of Gujarat under Section 41 (2) of the Act, he is also an Empowered Officer. Therefore, he was obliged to comply with the provisions of Section 41 (2) of the Act and not Section 42 (2) of the Act. The record shows that the information received by PI Mr. Tehlramani was reduced into writing by him. This becomes clear on perusal of his testimony recorded at Exh. 57 as well as from the contents of the document produced at Exh. 18, which is the entry made in the Information Register. In view of the aforementioned facts and circumstances, this Court is of the firm opinion that there was no violation of sub-section (2) of Section 42 of the Act. The finding recorded by the learned Judge is erroneous and, therefore, liable to be set aside. It is accordingly set aside. It is held by the learned Judge that there was non- compliance of Section 55 of the Act. Section 55 of the Act reads as under: “55. Police to take charge of articles seized and delivered.- An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the CR.A/896/1998 16/34 JUDGMENT Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, 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.” The abovequoted provision is interpreted by Division Bench of this Court in R.B. Mishra Vs. State of Gujarat, 2000 (1) GLH 137. After examining the scheme of the Act, it is held as under: “10. Mr.Kapadia then has pressed into service, Section 55 of the NDPS Act by submitting that PSO (Police Station Officer) of Chowk Bazaar police station has not put his separate seal on the muddamal article. Mr.Kapadia's attention was drawn to our aforesaid recent decision in Salimuddin's case (supra),where we had an occasion to deal with the provision of Section 55 of the NDPS Act relying upon a Bench decision of this Court in the case of State of Gujarat Vs.Abdul Rashid Ibrahim Mansuri - 1990 (2) GLH 398. The Bench observed : "41.Mr.Malik, learned Advocate for the respondent, contends that the provisions of Sections 52 and 55 are not complied with inasmuch as the Police Station Officer has not put his seal on the muddamal packets and subsequently the muddamal articles were taken to the Dudheshwar Crime Branch Police Chowky, from where P.S.I., Vaghela has taken the same to the Forensic Science Laboratory. Under Section 52, the Officer arresting the person has to inform him of the grounds of arrest and in case warrant is issued by the Magistrate and on the strength of the CR.A/896/1998 17/34 JUDGMENT warrant, such person is arrested, then such person should be forwarded to the Magistrate. Sub-section (3) of Section 52 provides that every person arrested and articles seized under sub section (2) of Section 41 or Section 42 or Section 43 or Section 44 shall be forwarded without unnecessary delay to the Officer in charge of the nearest Police Station or the Officer empowered under Section 53. Under sub-section (4) of Section 52, the authority or the Officer, to whom any person or article is forwarded under sub-section (2) or sub- section(3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. So far as dealing with such person is concerned, the Officer in charge of the Police Station may either secure police custody remand or send such person to judicial custody under the provisions of the Criminal Procedure Code. So far as the articles, which are produced before the Police Station Officer is concerned, they are required to be dealt with as provided in Section 55 of the Act. Section 55 provides that the Officer in charge of the Police Station himself take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and allow any Officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or take samples of and from them and all samples so taken are also required to be sealed with the seal of the Officer in charge of the Police Station. Sections 52 and 55, NDPS Act deal with the situations after the seizure and arrest. The articles are required to be sealed by CR.A/896/1998 18/34 JUDGMENT the Police Station Officer with a view that they may be protected properly and may not be tampered with. In case such articles are produced before the Officer in charge of the Police Station, the Officer producing such articles should affix his seal to such articles or take samples of such articles. In case the samples are taken, such samples are also required to be sealed with the seal of the Officer in charge of the Police Station. The seal of the Officer in charge of the Police Station is to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the Officer in charge of the Police Station by the authorised Officer seizing such goods, then again the second seal of the Officer in charge of the Police Station should be affixed on it. Even when the articles are produced, the Police Station Officer has to allow the Officer seizing the articles or the Officer deputed by such Officer to affix his seal.” From the aforesaid observations, it might be noted that the seal of the officer was to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the officer-in-charge of the Police Station by the authorised officer seizing such goods, then again the second seal of the Officer-in-charge of the Police Station should be affixed on it. This is what the Bench has observed, on consideration of provisions of Section 55 of the NDPS Act. In the present case, the box containing the muddamal article duly sealed came to be handed over to the police station officer who had preserved the same in the same condition and the whole of the muddamal duly sealed was sent to the FSL. Thus, the present case would be squarely covered by the decision in Abdul Rashid CR.A/896/1998 19/34 JUDGMENT Ibrahim Mansuri's case (supra). The Bench has further observed that, in case the Officer seizing the articles has affixed the seal at the place of seizing the articles or at any other place and after that, the articles are delivered to the officer in charge of the Police Station, it will not be necessary