IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 742 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JALALUDIN JABBAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 742 of 1997 MR US BRAHMBHATT for Petitioner MR HL JANI, APP for Respondent - State -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE H.H.MEHTA Date of decision: 07/10/2002 ORAL JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) 1. The appellant, who was the original accused in Sessions Case No.227 of 1996 before the Court No.10 of Additional Sessions Judge, City Civil Court, Ahmedabad has, by preferring this Criminal Appeal under Section 374(2) of the Criminal Procedure Code, 1973 [for short "Cr.P.C."] read with Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short N.D.P.S. Act] challenged the correctness, legality and validity of judgment Ex.28 rendered by the Additional Sessions Judge, Court No.10, City Civil Court, Ahmedabad [who will be referred to hereinafter as the "learned Judge of the trial Court"] in Sessions Case No.227 of 1996 on 20.05.1997, whereby the appellant has been convicted under Section 235(2) of the Cr.P.C. for an offence punishable under Section 22 of the N.D.P.S. Act for contravention of Section 8 of the N.D.P.S. Act and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000-00 [Rupees One Lac Only] and in default to undergo further R.I. for six months. 2. The facts leading to this present appeal in a nutshell are as follows :- 2.1 As per the complaint, Ex.17 filed by P.W.6 Surendrasinh Gambhirsinh Gohil, Police Inspector of Crime Branch, Ahmedabad City, he was on duty in D.C.B. Office at 9.30 A.M., on 14.06.1996. While, he was on duty at about 12.45 hours, he received one information from P.W.4 - Vakhatsinh Devisinh Vanar, P.S.I. of Crime Branch to the effect that one person by name Jalaludin Jabbar Jat [present appellant] resident of huts of Chandola Talav, Near Millatnagar, Ahmedabad, who has worn white full sleeve shirt and black pantaloon, aged about 25 to 30 years is keeping with him contraband article "Charas", is likely to pass nearby Jamalpur Circle at about 12.30 P.M. from the side of Geeta Mandir, S.T.Stand with an intention to sell that article. On receipt of such information, the complainant Shri Gohil made an Entry No.10/96 [Ex.19] at about 12.45 hours in the Station Diary of D.C.B. Police Station. A report [Ex.22] with regard to such an information received by him was sent to Deputy Police Commissioner, Crime Branch, Ahmedabad City. 2.2 Thereafter, Shri Gohil called P.S.I. Shri V.D. Vanar, First Grade Head Constable Shri Motibhai Khushaldas, Head Constable Batukbha Kalubha, Police Constable Narendrasinh Chandrasinh and other police personnel in his chamber and informed them about the information received by him from P.S.I. Shri V.D.Vanar. He also informed them that they had to accompany him, at the time of intercepting appellant at the place of which information was received by him for the purpose of raid and search. Thereafter, Shri Gohil called two independent persons to act as panch witnesses in his office. He, thereafter, gave introduction of the police personnel, who had assembled in his office to that two persons, who were called to act as panch witnesses. That two persons shown their willingness to act as panch witnesses. Thereafter, a preliminary panchnama was drawn in his office during the period from 13.15 hours to 13.35 hours. 2.3 Thereafter, complainant Shri Gohil, in company of P.S.I. Shri V.D. Vanar and other police personnel and two panch witnesses, left his office for Jamalpur Circle, near Fire-brigade Station by vehicles. They all got down from the vehicles and as per the instruction given by Shri Gohil, all the police personnel and panch witnesses took their respective positions nearby Jamalpur Circle in such a way that no one can notice their presence. It is the case of the prosecution that about 13.45 hours, P.S.I. Shri Vanar informed panch witnesses, who had taken their positions in the corner of Jamalpur Fire-brigade Station and the complainant, that person resembling person whose description was received in information was seen coming on the road leading from the side of Geeta Mandir, S.T. Stand. They saw that person was having one sky coloured cotton hand bag in his right hand. On seeing that person coming from the side of Geeta Mandir S.T. Stand, the panch witnesses, complainant, Shri Vanar and other police personnel started to walk on the road, as if they were bypassers towards that person. When they covered a distance of 100 paces from Fire-brigade corner, they met that person under the tamarind tree. That person was intercepted by them. Meanwhile he doubted for the persons, who intercepted him and, therefore, he tried to run away from the place, but he could not succeed. 2.4 After making him to halt the complainant in presence of panch witnesses asked his name. He informed that he was Jalaludin Jabbar Jat resident of huts of Chandola Talav, Near Millatnagar, Ahmedabad and that he was aged about 27 years. The complainant noticed that he had worn a full sleeve white shirt and black pantaloon. That person was nobody else, but the present appellant. The complainant in presence of panch witnesses informed him about the information with regard to him, received by him and that he was having with him some intoxicant contraband article. He was informed by the complainant that he was at liberty to take search of the complainant, panch witnesses and other police personnel, who intercepted him. He declined to take search of members of the raiding party. Thereafter, the complainant gave his introduction by showing his identity card to the appellant. He also informed the appellant about police personnel and panch witnesses present with him and asked him as to whether he had any doubt with regard to action which they propose to take in accordance with law. He was also informed that he was at liberty to get him searched in presence of either Gazetted Officer or Executive Magistrate. The accused denied to get him searched as informed of by the complainant. He also expressed his views that he has faith in police proceedings. 2.5 Thereafter, the complainant in presence of panch witnesses searched the "person" of the appellant, but nothing was found from his "person or clothes worn by him. During the course of such search, which was going on, the complainant found that the appellant was having one cotton hand bag in his right hand. On getting searched that hand bag in presence of panch witnesses by the complainant, it was found that there was one transparent plastic bag tied with wax string and that bag was filled with some black coloured pieces of some substance. That transparent plastic bag was, by removing that wax string, opened and it was found that there were some slabs of square size, rectangle size, oval shape and egg-shape solid substance were found. Out of them some pieces were broken. There was some powder of substance in the transparent plastic bag. Pieces were counted. They were 25 in number. That pieces of substance were smelt by panch witnesses and the complainant and it was found that smell of "Charas" was emitting from that substance. As the appellant was found with the possession of such contraband article of "Charas", the complainant asked him as to whether he was having any pass, permit or license for keeping such substance with him. The appellant denied to have such pass, permit or license. 2.6 Thereafter, that substance was required to be weighed and, therefore, Goldsmith by name P.W.5 Bipinbhai Chandrakant Soni, Ex.15 was called with weighing scale and weight measurements. P.W.5 Bipinbhai Chandrakant Soni, Ex.15 came at the said place with weighing scale and weight measurements. That substance was weighed by him. It was found that the substance was weighing about 1135 grams. Meanwhile, one Scientific Officer of Forensic Science Laboratory [for short the "F.S.L."] was called to examine the substance on the spot. As per the case of the prosecution Shri A.R. Ranpura, Officer of F.S.L. came there and he examined that substance and he gave a preliminary opinion that the substance was "Charas". He also asked the complainant to send the sample of that substance for detailed examination to the F.S.L. Thereafter, that substance, which was found from transparent plastic bag was kept, inside that bag in same condition and, that bag was tied with a wax-string. That plastic bag was then put in one cotton bag. That cotton bag was also tied with string and it was properly packed and sealed by putting a paper slip bearing signatures of panch witnesses and complainant Seal impression of "Police Inspector of D.C.B., Ahmedabad City" was put on that paper-slip. Thereafter, that cotton bag was placed inside one thick card board box meant for wheel shop. Thereafter, that box was duly packed and sealed. Thereafter, the complainant asked the appellant as to from which source he brought that contraband article and at what destination, it was to be sent. On making such query to appellant, he informed the complainant that he purchased that article from one Jalaludin Pathan residing at Chandola Talav Chhapra, Millatnagar, Near Mohammadi Maszid, Ahmedabad. He also informed that Jalaludin Pathan was originally resident of village Mahenia, Tal. Maharaj-Ganj, District Gorakhpur [Utter Pradesh]. It is to be noted that this person by name Jalaludin Pathan is shown as absconding accused in vertical column No.2 of charge-sheet filed against the present appellant. The appellant also informed the complainant that he had purchased that article from said Jalaludin Pathan for sale to other customers, who may be likely available at the place known as "Sapt Rhushina Aara". Thereafter, the complainant in presence of panch witnesses completed the panchnama at that very place during the period from 13.45 hours to 19.00 hours. It is mentioned in this panchnama that there was one electric light pole just at a distance of 16 paces from a tamarind tree. As per the complaint that article was estimated to be of value of Rs.28,375-00 [Rupees Twenty Eight Thousand Three Hundred Seventy five Only]. That article was recovered seized and sealed under panchnama from the appellant and for that a receipt was given to the appellant. 2.7 Immediately, thereafter, the complainant Shri Gohil, by taking with him that muddamal article and custody of the appellant, went to D.C.B. Police Station and lodged his complaint against the appellant and absconding accused Jalaludin Pathan in D.C.B. Police Station. That complaint came to be registered as C.R. No.Prohi-20/96 at about 20.05 hours on 14.6.1996 and entry with regard to such complaint being lodged by Shri Gohil was made in the Station Diary. That complaint came to be registered for the offences punishable under Sections 8, 20, 22, 23 and 29 of the N.D.P.S. Act. That Crime of C.R.No.Prohi-290/96 was investigated by Shri Gohil and on completion of investigation, he filed a charge-sheet against the present appellant in the City Sessions Court, Ahmedabad on 12.9.1996. That charge-sheet came to be registered as Sessions Case No.227 of 1996. In that charge-sheet, the Investigating Officer has cited the name of Jalaludin alias Jamal son of Kamruddin Pathan as absconding co-accused. 3. The learned Judge of the trial Court has framed a charge [Ex.1] against the appellant for the offence punishable under Section 22 of the N.D.P.S. Act for contravention of Section 8 of the N.D.P.S. Act on 12.12.1996. On recording plea of the appellant, he pleaded not guilty to the charge and claimed to be tried. The prosecution has examined in all six witnesses to prove the guilt of the accused for the offence stated in the charge. P.W.1 Shri Ashokbhai Dahyabhai Patel Ex.8 [panch witness] P.W.2 Shri Gokalbhai Ramabhai Ex.10 [First Grade Police Jamadar] P.W.3 Police Constable Shri Sagarbhai Ex.12 Haribhai Rabari P.W.4 P.S.I. Shri Vakhatsinh Devsinh Ex.13 Vanar P.W.5 Shri Bipinchandra Chandrakant Ex.15 [Goldsmith] P.W.6 P.I. Shri Surendrasinh Gambhirsinh Ex.16 Gohil 4. The prosecution has also produced the following documents along with other documents in support of its case against the appellant. 1. Forwarding letter with which muddamal article was sent to F.S.L. Ex.5. 2. Report of F.S.L. Ex.7. 3. Panchnama Ex.9. 4. Muddamal Receipt Ex.11. 5. Information received by Shri Vanar, P.S.I, Ex.14; 6. Complaint Ex.17. 7. Report under Section 157 of the Cr.P.C. of complainant made to the Superintendent of Court No.10, City Sessions Court, Ahmedabad, Ex.18. 8. A copy of Entry No.10 [12.45 hours] dated 14.6.1996 from Station Diary of D.C.B. Police Station, with regard to information received by Shri Gohil from Shri Vanar, Ex.19. 9. A copy of Entry No.15 [20.05 hours] with regard to report made under Section 157 of Cr.P.C., from the Station Diary of D.C.B. Police Station, Ex.20. 10. A copy of Entry No.16 [20.20 hours] with regard to Muddamal article handed over to P.S.O. of D.C.B. Police Station etc. from the Station Diary, Ex.20 [on second page]. 11. Vardhi dictated by writer Head Constable Shri Natvarsinh Nathusinh Chavda at the instance of P.I. Shri S.G. Gohil, Ex.21. 12. Report with regard to information received by Shri Gohil, made to the Deputy Police Commissioner, Crime Branch, Ahmedabad City, Ex.22. 13. Yadi written to Director, F.S.L. by Shri Gohil requesting him to depute some Scientific Officer of F.S.L. at the place of raid for a preliminary examination for the substances, Ex.23. 14. A certificate dated 14.6.1996 given by F.S.L., who examined the substances at the place of raid, on back of Ex.23. 15. A receipt given by Shri Gohil to the accused for article recovered and seized from him Ex.24. 16. Information to appellant giving grounds of arrest in the form of report Ex.25. 5. After recording of evidence led by the prosecution was over, the circumstances appearing against the appellant were brought to the notice of and explained to the appellant. The appellant has denied practically the entire case of the prosecution. He has neither led any evidence in his defence nor examined himself as a witness in his defence. His further statement was recorded under Section 313 of the Cr.P.C. After hearing the arguments of the learned advocates for both the parties and after analyzing and making appreciation of evidence on record, the learned Judge of the trial Court came to be conclusion that on or about 14.6.1996 at about 19.00 hours, the present appellant was found with actual and conscious physical possession of the contraband article "Charas" weighing about 1135 grams on the public road just Near Jamalpur Circle, Fire-brigade, Ahmedabad. By deducing thus, the learned Judge of the trial Court has convicted the appellant under Section 235(2) of the Cr.P.C. for the offence punishable under Section 22 of the N.D.P.S. Act for contravention of Section 8 of the N.D.P.S. Act. Thereafter, the learned Judge of the trial Court after hearing appellant on the point of sentence passed an order inflicting sentences as referred to in para-1 hereinabove. 6. Being aggrieved against and dissatisfied with the aforesaid judgment of conviction and sentence, the appellant has preferred this present Appeal. 7. We have heard Mr.U.S. Brahmbhatt, learned advocate for the appellant and Mr.H.L.Jani, learned APP for the respondent - State in detail at length. Mr.U.S. Brahmbhatt, learned advocate for the appellant has taken us through the entire evidence on record, oral as well as documentary. He has also taken us through the impugned judgment, which is challenged in this Appeal. 8. Mr.U.S.Brahmbhatt, learned advocate for the appellant has argued that the learned Judge of the trial Court has not correctly appreciated the evidence in its proper perspective and that the learned Judge of the trial Court has not taken into consideration the different breaches of mandatory provisions of the N.D.P.S. Act, committed by Shri Gohil, while conducting the raid and search of the appellant. He has argued that Shri Gohil has contravened the mandatory provisions of Sections 42, 50, 52 and 55 of the N.D.P.S. Act and Section 102(3) of the Cr.P.C. He has further argued that the learned Judge of the trial Court ought to have come to the conclusion that the prosecution has totally failed to prove the case against the appellant for which the charge was framed. He has further argued that in this case, the raiding officer, who seized the muddamal article from the appellant for the purpose of analysis, had sent it to F.S.L. after 4 days and the prosecution has not explained this inordinate delay of 4 days occasioned for sending the sample to the F.S.L. He has further argued that this delay of 4 days in sending the sample to the F.S.L. itself and absence of explanation for causing this delay have prejudiced the defence of the appellant and, therefore, the appellant should be given benefit of doubt. He has further argued that in view of his submissions, this appeal deserves to be allowed and the appellant be acquitted of the charge for which he was tried by the learned Judge of the trial Court. 9. Mr.H.L.Jani, learned APP for the respondent State has supported the impugned judgment. He has argued that this is a case in which all the mandatory provisions of N.D.P.S. Act were complied with by the raiding officer and in no case, it can be said that the raiding officer committed a breach of mandatory provisions of the N.D.P.S. Act. He has further argued that it is wrong to argue that the muddamal articles were sent to F.S.L. 4 days after the seizure. He has argued that looking to the evidence on record, there was a delay of only two days and prosecution has explained the delay saying that there was some administrative reasons for sending the muddamal articles two days after the seizure. He has further argued that there is nothing on record to indicate that the learned Judge of the trial court committed a serious error in convicting and sentencing the appellant and, therefore, this present appeal deserves to be dismissed. 10. We have anxiously considered the submissions made the by both the parties of the case. We have carefully examined the evidence on record and reappreciated it as if this Court is a trial Court. 11. Looking to the provisions of N.D.P.S. Act no person or officer other than "an empowered officer" under Section 41(2) or "authorized officer" under Section 42(1) of the N.D.P.S. Act can take any action or raid or search any person, building, conveyance or enclosed place. 11.1 Herein this case, P.W.6, P.I. Shri Surendrasinh Gambhirsinh Gohil, Ex.16 received an information from P.W.4, P.S.I. Shri Vakahtsinh Devisinh Vanar and on the basis of that information, he proceeded further to carry out the raid and search of the appellant at the place, which was mentioned by Shri Vanar, while giving information. Shri Gohil was a Police Inspector on the relevant date of raid and search. He was a Gazetted Officer. In the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, reported in AIR 2000 S.C. 821, the Hon'ble Supreme Court has observed in para-13 as follows. "For the purposes of this case, PW-2 being a police officer much above the rank of a constable, would be "any such officer" as envisaged in the Section [i.e. Section 42 of the N.D.P.S. Act]." This case of Abdul Rashid Ibrahim Mansuri [Supra] is arising from a decision rendered by Division Bench of this Court in State of Gujarat Vs. Abdul Rashid Ibrahim Mansuri, reported in 1990 (2), 31(2) GLR 947. In that case before the Division Bench of this Court, the raiding officer was a Police Inspector Shri P.M. Vishen. This Court held that "Police Inspector Shri P.M.Vishen was an empowered officer under Section 41(2) of the N.D.P.S. Act [relevant portion of para-25 on page 964]". The Hon'ble Supreme Court has held in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, [Supra] that PW-2 [i.e. Shri P.M. Vishen, Police Inspector] being a Police Officer, much above the rank of a constable, would be "any such officer" as envisaged in Section 42(1) of the N.D.P.S. Act. In view of this legal position, it is crystal clear that though Shri Gohil was a Police Inspector, he was "any other officer" as envisaged under Section 42(1) of the N.D.P.S. Act. 11.2 As per an evidence of P.W.6, Shri Gohil, on 14.6.1996 he was on duty as Police Inspector in D.C.B. Police Station and on that day at about 12.45 hours, he received an information from P.S.I. Shri Vanar. As per his evidence, he immediately reduced that information into writing by making an Entry No.10 in the Station Diary at about 12.45 hours. This Entry No.10 is at Ex.19. This fact with regard to making of an Entry No.10 [Ex.19] is reflected in the complaint at Ex.17. Thus, Shri Gohil, who was an authorized officer under Section 42(1) of the N.D.P.S. Act, complied with the requirement of reducing an information into writing. Shri Gohil has further deposed that on receipt of an information, he by sending a written report, informed the Deputy Commissioner of Police of Crime Branch. That report is on record at Ex.22. Thus, Shri Gohil has complied with the requirement of Sub-Section (2) of Section 42 of the Act. The raid was carried out during the period from 13.45 hours onwards. The Panchnama with regard to raid and search of the appellant carried out by Shri Gohil in presence of panch witnesses was completed at about 19.00 hours and, therefore, question does not arise for making compliance of requirement of proviso to Sub-Section (1) of Section 42 of the N.D.P.S. Act. 12. From the record, it appears that on receipt of information from Shri Vanar, Shri Gohil called two independent persons to act as panch witnesses, in his office. He also called the Police personnel including P.S.I. Shri Vanar, who were taken with him at the place as stated in the information. As per the case of the prosecution, the panch witnesses, who first came to D.C.B. Police Station, were allowed to take search of Police personnel and accordingly, search of Police personnel and panch witnesses interse was taken and nothing was found from any one of them. For procedure followed before leaving Police Station, a preliminary panchnama was drawn in presence of panch witnesses during the period from 13.15 hours to 13.30 hours. This panchnama Ex.9 is duly proved by the prosecution. As per the evidence on record, the members of the raiding party including P.S.I. Shri Vanar and two panch witnesses in the leadership of P.I. Shri Gohil went to the place indicated in the information given by Shri Vanar by vehicle and as per the evidence at about 13.45 hours, the members of the raiding party, P.S.I. Shri Vanar, P.I. Shri Gohil and two panch witnesses took their respective positions nearby the place indicated in the information in such a way that no can doubt for their presence. As per an evidence of the prosecution, the person, who was to come with contraband article from the side of Geeta Mandir S.T. Stand, came there and he was apprehended by Shri Gohil in presence of panch witnesses. P.S.I. Shri Vanar identified that person to be a person for whom an information was given to P.I. Shri Gohil. Shri Gohil informed the appellant that he wanted to take search of his "person", as they have received an information that he was having with him possession of contraband article. Shri Gohil has specifically deposed in his evidence that he informed