CR.A/1963/2005 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1963 of 2005 WITH CRIMINAL APPEAL No. 320 OF 2007 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ====================================== 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 ? ====================================== THAKUR NARAYANSINGH SHRI JALARAM - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ====================================== Appearance : MS Sadhna Sagar for Appellant and MR Dipen Desai APP for State in both the appeals. ====================================== CR.A/1963/2005 2/27 JUDGMENT CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/05/2008 COMMON C.A.V. JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. The appellants – original accused Nos.1 and 2 have filed these appeals under sec.374(2) of the Code of Criminal Procedure (“the Code” for short) against the judgement and order of conviction and sentence dtd.30/7/2004 passed by the learned Special 2nd Fast Track Court, Patan in Special [NDPS] Case No.3 of 2003 convicting the appellants – original accused Nos.1 and 2 for the offences punishable under secs.8(C), 20(B), 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act” for short) and sentencing them to suffer R.I. for 10 years with fine of Rs.1 Lac and in default of payment of fine, further R.I. for one year for each of the CR.A/1963/2005 3/27 JUDGMENT offences with a further direction that all substantial sentences shall run concurrently. 2. Briefly stated, the prosecution case as disclosed from the complaint as well as unfolded during trial, is as under :- 3. Mr. N.D. Jetavat, Police Inspector, Sidhdhhpur Police Station lodged a complaint that on 16/1/2003 at 00.15 hours in the midnight, he along with the Head Constable Manubhai Somabhai and Police Constables named Bhratsinh Surendrasinh, Lakshmansinh Pratapsinh, Hardiksinh Madhavsinh etc. were on night checkking in Sidhdhpur town in the Government vehicle and while on petrolling, they went to near Kakoshi Cross Roads on Highway and when they reached opposite Sunrise Hotel, they met Head Constable Muradkha Jivankha, Unarmed Police Constable Mulubha Govindsinh and other two Home-guard personnels and instruction was given them to properly check and at that time, when he was instructing them, two persons came from Kakoshi Cross Roads and they had covered their faces with Shawl and their presence was found to be suspicious when they started walking with speed and when they did not give CR.A/1963/2005 4/27 JUDGMENT proper reply, a search was made on the said persons and the complainant and other introduced themselves to the said persons and the police constables Lakshmansinh called two panchas named Baldevji Sartanji Rajput and Chandansinh Madarsinh Rajput and they readily agreed to be the panchas and in their presence, the names of the aforesaid persons were asked in Hindi and one person has given his name as Harjindarsing Savindarsing and another has given his name as Narayansinh Srijaleram and in presence of the panchas, shawl was removed and the bag carried by the original accused No.1 was searched which resulted into find of much quantity of charas i.e. 3.250 Kgs. Charas was found worth Rs.48,750 and when the complainant asked any pass or permit, those persons were not having any pass or permit. It is to be noted that before that, those persons were asked whether they want to be searched in presence of any Gazetted Officer, both the persons refused and thereafter search was carried out, and thereafter the search of the offending substance was seized. A sample was drawn which was sealed as required by law in presence of Panchas and the sealed sample was sent to FSL for analysis. Before that, after drawing Panchnama, the CR.A/1963/2005 5/27 JUDGMENT complainant gave complaint at Sidhdhpur Police Station being CR No.I-3 of 2003 against the aforesaid two persons for the offences punishable under secs.8(C), 20(B), 22 and 29 of the NDPS Act. Thereafter, further investigation was carried out by P.S.I. Mr.Nagori. Statements of witnesses came to be recorded and as stated above, sample was sent to the FSL. The report of the analysis indicated that the substance analysed was Charas within the meaning of NDPS Act and thereafter as the investigating officer found that the accused have committed offence punishable under secs. 8(C), 20(B), 22 and 29 of the NDPS Act, he filed chargesheet before the learned Special Judge and Sessions Judge, Patan which was numbered as Special [NDPS] Case No.3 of 2003. Thereafter, the case was transferred to the court of learned Special Judge, 2nd Fast Track Court, Patan. Charge came to be framed against both the accused persons at Ex.9. Both the accused did not plead guilty and their statements were recorded at Ex.Nos.10 and 11. As both the accused did not plead guilty and denied having committed any offence as alleged, they were put to trial. In order to prove the case against the appellants, the prosecution has examined in all 9 witnesses and also CR.A/1963/2005 6/27 JUDGMENT produced documentary evidence inclusive of the Panchnama of place of offence, Panchnama of search and seizure, FSL Report etc. After recording evidence of the prosecution was over, the learned trial court explained the accused the circumstances appearing against them in the evidence of the prosecution and recorded their further statement u/sec.313 of the Code. In their further statement, the accused have denied the case of the prosecution by reiterating that they have been falsely implicated. 4. On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned trial court has held that contraband article Charas was recovered from the possession of the original accused No.1 and the original accused No. 2 has abetted him in commission of the offence and that the prosecution has been able to establish that the complicity of accused for commission of the offences with which they were charged, have been proved beyond reasonable doubt, and therefore, he recorded the order of conviction and sentence against them to which reference is made in earlier paragraph of this judgment, giving rise to the CR.A/1963/2005 7/27 JUDGMENT instant two appeals at the behest of the original accused Nos. 1 to 2. 5. Ms. Sadhna Sagar, learned advocate appearing for the appellants – original accused Nos. 1 to 2 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, 2nd Fast Track Court, Patan dtd. 30/7/2004 rendered in Special (NDPS) Case No. 3 of 2003. She has further submitted that the learned trial court has erred in convicting both the appellants – original accused Nos. 1 to 2 though there was no cogent or adequate evidence showing their guilt in the matter. She has further submitted that the learned trial court has failed to appreciate that the appellants – original accused Nos. 1 to 2 have not committed the alleged offence. She has further submitted that the evidence pressed into service by the prosecution is untrustworthy, unreliable and can never form basis of conviction. She has further submitted that considering the Panchnama at Ex.18 and deposition of the Panch Witness Baldevji Rajput Ex.15, place of offence has been changed as well as colour of Shawl has also been changed. It is further submitted that the Panch CR.A/1963/2005 8/27 JUDGMENT Witness Rafikbhai who was examined to prove the weight of the substance at Ex.35, is declared hostile. It is further submitted that no report has been sent to the Magistrate with regard to the seizure of the muddamal article. The muddamal articles were sent to the FSL in sealed condition has also not been proved. 6. It is further submitted that so far as accused No.2 is concerned, admittedly he was not found to be in possession of the contraband article. It is submitted that admittedly the contraband article was found from the bag which was with the accused No.1 and therefore the accused No.2 can never be said to be in conscious possession of the contraband article. It is submitted that in absence of any further material and/or evidence connecting the accused No.2 with the accused No.1, the order of conviction convicting the appellant No.2 for abetment etc. deserves to be quashed and set aside. 7. Ms.Sadhna Sagar, learned advocate appearing on behalf of the appellants has heavily relied upon the unreported decision rendered by the Division Bench of this Court in Criminal Appeal No.317 of 2003 and other cognate CR.A/1963/2005 9/27 JUDGMENT appeals. It is submitted that in the case before the Division Bench, 5 accused persons were charged for the offences under the NDPS Act and accused No.1 was found to be in possession of the contraband article and accused Nos.2 to 5 were found in company of the accused No.1. However, the bag was not found from them and accused Nos.2 to 5 were convicted for hatching conspiracy and abetment in commission of the crime and relying upon the decision of the Hon'ble Supreme Court in the case of Sorabkhan Gandhkhan Pathan and another Vs. State of Gujarat, reported in (2004) 13 SCC 608, and other decisions of the Hon'ble Supreme Court, the Division Bench acquitted accused Nos.2 to 5 by holding that conscious possession of the contraband article with accused Nos.2 to 5 is not established and even the knowledge that the accused No.1 was having contraband article with him cannot be presumed in absence of any cogent and concrete evidence brought by the prosecution. She has also relied upon the decision of the Hon'ble Supreme Court in the case of Sorabkhan Gandhkhan Pathan and another (supra). 8. It is submitted that in the present case, as stated above, CR.A/1963/2005 10/27 JUDGMENT admittedly the contraband article was found from the bag which was with the accused No.1 and not from the accused No.2 and therefore it is requested to acquit the accused No.2 of Criminal Appeal No.1963 of 2005 also. By making above submissions, it is requested to allow both the appeals and acquit both the accused for the charges levelled against them. 9. Mr. Dipen Desai, learned Additional Public Prosecutor for the respondent – State of Gujarat in both the appeals submitted that by voluminous evidence produced by the prosecution, the complicity of both the accused is proved beyond reasonable doubt. Both the accused were found near Sunrise Hotel at 00.15 hours and both of them were found under one Shawl and moving in a suspicious circumstances and accused No.2 has failed to explain his presence with the accused No.1 that too under one Shawl. It is submitted that both the accused are rightly convicted and sentenced by the trial court and therefore, the impugned judgement and order does not warrant any interference by this court in these appeals. He has, therefore, urged to dismiss both these appeals. CR.A/1963/2005 11/27 JUDGMENT 10.Mr.Desai, learned APP has further submitted that the Muddamal Receipt of having seized the muddamal from the accused - Ex.41 was signed by both the accused. It is further submitted that the prosecution has established beyond doubt the entire procedure/process right from seizure of the muddamal to taking to FSL, Ahmedabad, examining witnesses at Ex.Nos.37,38,39 and 43. Mr.Desai, learned APP has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Megh Singh Vs. State of Punjab, reported in (2003) 8 SCC 666 (relevant para 6 to 14), with respect to conscious possession. He has also relied upon the decision of the Hon'ble Supreme Court in the case Madanlal and another Vs. State of H.P., reported in (2003) 7 SCC 465 (relevant para 18 and 19). He has also relied upon the decision of the Division Bench in the case of Dashrathbhai Govnindbhai Shah and another Vs. State of Gujarat, reported in 1998 Criminal Law Journal 4634 (relevant page 4637). It is also futher submitted by Mr.Desai, learned APP that so far as the decision relied upon by the learned advocate appearing on behalf of the appellants accused are concerned, they are on the facts and circumstances of CR.A/1963/2005 12/27 JUDGMENT that case and in the case before the Division Bench in Criminal Appeal No.317 of 2003 and other cognate appeals it was found by the Division Bench that the prosecution has not placed any material on record to show relation between accused No.1 on one hand and accused Nos.2 to 5 on the other hand and on facts the Division Bench held that so far as accused Nos.2 to 5 are concerned, their complicity has not been established and therefore, by giving benefit of doubt, they were acquitted. It is also further submitted that in the case before the Hon'ble Supreme Court in Sorabkhan Gandhkhan Pathan and another (supra), two accused came to be acquitted by the Hon'ble Supreme Court who were travelling in an Auto-Rickshaw by holding that no material was produced to establish that the accused No.2 in that case had knowledge that the accused No.1 was carrying contraband articles. Therefore, it is submitted that both the aforesaid decisions relied upon by the learned advocate appearing on behalf of the appellants accused are not of any assistance to them in the facts and circumstances of the case and considering the case on hand. Therefore, it is requested to dismiss both the appeals and to uphold the judgement and order of CR.A/1963/2005 13/27 JUDGMENT conviction passed by the trial court. 11.We have considered the submissions advanced by Ms. Sadhna Sagar, learned advocate appearing for the appellants - original accused Nos. 1 and 2 and Mr. Dipen Desai, learned Additional Public Prosecutor, appearing for the State of Gujarat at length. We have also undertaken a complete and comprehensive exercise of 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 trail court convicting the appellants-accused Nos. 1 and 2 sentencing them for R.I of 10 years and fine of Rs.1 lac each and in default thereof, to undergo further R.I of 1 year. 12.In order to find out whether the prosecution has established the charge against the appellants – original accused Nos. 1 and 2 beyond reasonable doubt and whether the learned trial court has recorded a just and correct conclusion holding the appellants – original CR.A/1963/2005 14/27 JUDGMENT accused Nos. 1 and 2 guilty, we may first advert to the oral testimony of the prosecution witnesses. 13.The prosecution has examined PW-2 – Narpatsinh Dolatsinh Jetavat. He is the complainant, who at the relevant time was on duty on 16/1/2003 on night checking at 00.15 hours. His oral evidence supports the case of the prosecution and seizure of the muddamal article from the accused persons. It is also established from his evidence that both the accused were found in suspicious circumstances at midnight at 0.15 hours under one shawl and muddamal article was found from the bag which was with the accused No.1. No other question has ben asked in the cross of the said witness about the accused No.2 not apprehended. The panch witness PW-1 Rajput Baldevji is examined at Ex.15. The said panch witness has fully supported the case of the prosecution. Bharatsinh Surendrasinh – PW-4, Police Constable who was in the raid has been examined at Ex.37. He had taken the muddamal article to FSL Ahmedabad and the said muddamal article was given to him by ASI Mavjibhai. The acknowledgment receipt of the muddamal article is produced at Ex.38. One R.D. Rajput-PW-5, PSO who CR.A/1963/2005 15/27 JUDGMENT registered the crime and received the muddamal is examined at Ex.39. Thereafter, investigation was handed over to one N.B. Nagori. Mavjibhai Dupjibhai Kharadi – PW-6, ASI, who handed over the muddamal to Bharatsinh, came to be examined at Ex.43. Sealing of the contraband article has been proved by the said witness. One Virbhadrasinh Laxmansinh – PW-7 who brought the muddamal from FSL is examined at Ex.46. Panchnama of seizure is produced at Ex.48 and the accused have admitted the said Panchnama. FSL Report shows that the contraband article recovered from the accused No.1 was Charas. FSL Officer Jan-mohammed Mansuri -PW-8 is examined at Ex.49 and he has also supported the case of the prosecution. One of the witness Rafikbhai, who was panch witness at the relevant time of weighing the substance, turned hostile but the same would not fatal to the prosecution case, because other panch witness who has weighed the contraband article has supported the case of the prosecution. Other police officers who have been examined, as stated above, have fully supported the case of the prosecution. It is proved by leading oral evidence as well as documentary evidence that the contraband article was properly sealed and it reached to CR.A/1963/2005 16/27 JUDGMENT FSL in sealed condition. The muddamal receipt of having seized muddamal from the accused produced at Ex.41, has been signed by the accused. The seizure memo produced at Ex.31 has been explained to the accused in Hindi and the same has been signed by them. All the prosecution witnesses have identified the accused Nos.1 and 2. From the evidence of the aforesaid witnesses examined by the prosecution it is seen that they have justified before the Court as to what role they have played in the raid. 14.It is also proved from the evidence on record that the statutory provisions contained under Sections 42, 43 and 50 of the NDPS Act have been complied with. As such no grievance has been made by the learned advocate appearing on behalf of the appellants accused that any of the statutory provisions of the NDPS Act has has not been complied with. 15.So far as the compliance of the mandatory provisions of Section 50 of the NDPS Act is concerned, the evidence is consistent. At the time of interception and raid, the complainant had informed the accused that if they so CR.A/1963/2005 17/27 JUDGMENT desired, they could be searched in presence of a gazetted officer or a magistrate or if they desired that they may be searched by him, then he will search him and the option was left to the accused and the accused preferred the second option and volunteered to be searched by him. Therefore, Mr.Jetavat, in presence of the panchas and other police personnels who were members of the raiding party, searched the person of the accused and during the search he found contraband article from the accused. 16.So far as the journey of the muddamal from the stage of interception of the accused, search of the person of the accused and seizure and sealing of contraband article till it reached FSL has also been duly proved and all the witnesses in this regard are consistent. As per the said evidence, the muddamal was not tampered with at any stage and it reached FSL intact in sealed condition. The procedure for sealing was done as per the practice adopted by the police in NDPS cases. FSL report clearly shows that the muddamal was sealed and in intact condition. It is also clear from the FSL report that it was received by FSL intact in sealed condition and on analysis of the muddamal it was found to be Charas. Therefore, CR.A/1963/2005 18/27 JUDGMENT during journey of the muddamal from seizure and sealing till it reached FSL for analysis, there was no question of tampering with the said muddamal. 17.Independently, this Court has also perused the documents on record and from the perusal of the same it is clear that the raiding party and/or Investigating Officer, has strictly followed the mandatory and statutory provisions contained under the NDPS Act and no discrepancy could be noticed by this court on the part of raiding party and/or Investigating Officer with regard to compliance of the provisions of NDPS Act. 18.In view of the aforesaid evidence, there is no manner of doubt that when the appellants – original accused Nos. 1 and 2 were intercepted, apprehended and searched, the accused No. 1 was found in possession of contraband article Charas and the same was recovered from the bag with the accused No.1 and accused No.2 was found in the company of the accused No.1, under one Shawl at 00.15 hours. Necessary formalities of search and seizure have been complied with in presence of panchas and the statutory requirements and formalities contained under CR.A/1963/2005 19/27 JUDGMENT the NDPS Act were followed and the sample was sent to FSL for analysis after following the procedures under the NDPS Act. 19.On close scrutiny of the evidence on record, so far as the accused No. 1 i.e. appellant of Criminal Appeal No.320 of 2007 is concerned, we find no infirmities in the findings, ultimate conclusion and the resultant order of conviction and sentence recorded by the trial court. 20.So far as accused No. 2 i.e. Appellant of Criminal Appeal No.1963 of 2005 is concerned, it is the contention on behalf of the learned advocate appearing on behalf of the accused No.2 that admittedly the contraband article was recovered from the bag with the accused No.1 and not from the accused No.2 and merely because the accused No.2 found to be in the company of the accused No.1, knowledge by the accused No.2 that the accused No.1 was having contraband article cannot be presumed and therefore, the conviction requires to be quashed and set aside. 21.As stated above, the learned advocate appearing on CR.A/1963/2005 20/27 JUDGMENT behalf of the accused No.2 has relied upon the decision of the Hon'ble Supreme Court in the case of Sorabkhan Gandhkhan Pathan and another (supra) and also the unreported decision of the Division Bench rendered in Criminal Appeal No.317 of 2003 and other cognate appeals. On the other hand, it is the contention on behalf of the learned APP that admittedly accused No.2 was with the accused No.1 at 00.15 hours under one Shawl and the accused No.2 has failed to explain his presence with the accused at 00.15 hours that too under one Shawl. It is also further submitted by learned APP that it is proved on evidence that one day earlier both the accused Nos.1 and 2 were found together at Mount Abu and therefore, the relationship between the accused Nos.1 and 2 has been established and therefore, the accused No.2 is also rightly convicted. The learned APP has relied upon the decisions of the Hon'ble Supreme Court in the cases of Megh Singh (supra), Madanlal and another (supra) and decision of the Division Bench of this Court in the case of Dashrathbhai Govnindbhai Shah (supra). It has been established on evidence by the prosecution that accused No.2 was found with the accused No.1 at 00.15 hours under one Shawl. The contraband article has been CR.A/1963/2005 21/27 JUDGMENT recovered from the bag which was with the accused No.1. The accused No.2 has failed to explain his presence and company with the accused No.1 at 00.15 hours in the midnight that too under one Shawl. It has also come on evidence that accused Nos.1 and 2 both were found together in the company at Mount Abu prior to one day only. The aforesaid things are required to be considered while considering the case of the accused No.2. 22.The Hon'ble Supreme Court while dealing with the aspect of “possession” and “conscious possession” in the case of Megh Singh (supra), in para 9 and 10 has observed as under:- “9. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It