CR.A/72/2002 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 72 of 2002 with CRIMINAL APPEAL No. 91 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ===================================================== 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 ? ===================================================== SALIM ALABAKSH AJMERI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : CRIMINAL APPEAL NO. 72 OF 2002 MR MAHESH BHAVSAR for Appellant(s) : 1, MR. K.T.DAVE, APP for Respondent(s) : 1, CRIMINAL APPEAL NO. 91 OF 2002 CR.A/72/2002 2/30 JUDGMENT MR. K.T.DAVE, APP for Appellant MR. M.H.BAREJIA for Respondent ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 10/11/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in these two Criminal Appeals is to the correctness of the judgement and order dated 24.10.2001 rendered in Sessions Case No. 168 of 2000 by the learned Additional Sessions Judge, Court No.9, City Sessions Court, Ahmedabad. By impugned judgement and order, Salim Alabaksh Ajmeri-the Appellant (A-2) of Criminal Appeal No. 72 of 2002 has been convicted for the offence punishable under Section 21 of the Narcotic Drugs & Psychotropic Substances, Act, 1985 (“NDPS Act” for short) and sentenced to suffer RI for 10 years and fine of Rs. 1,00,000/-, and in default of payment of fine RI for further period of 2 years, whereas Abbasmiya Sharifmiya Saiyed-Respondent (A-1) of Criminal Appeal No. 91 of 2002 has been acquitted of the offence with which he was charged. CR.A/72/2002 3/30 JUDGMENT 2. Aggrieved by the impugned judgement and order, A-2 has filed Criminal Appeal No. 72 of 2002 u/s 374 of the Code of Criminal Procedure (“the Code” for short), challenging his order of conviction and sentence, whereas the State of Gujarat has filed Criminal Appeal No. 91 of 2002 against the Respondent A-1 u/s 378 of the Code, challenging the order of acquittal of the A-1. 3. The prosecution case as disclosed from the FIR and unfolded during trial is that, on 22.1.2000 PW-3 – Madarsinh Bhikhaji Solanki received secret information that one Yasminbanu Noormohmed Shaikh, accused no.3 (A-3), who was not before the Court, was running the business of selling contraband article, i.e. Brown Sugar through her persons, in her house, situated at Mamuji Khancho Dadamiya Gali, Dariyapur. A-1 and A-2 are retained by her for such purpose and they would be trafficking in the said Brown Sugar and transporting it. The information further stipulated that one Abbasmiya Sharifmiya Saiyed (A-1) would be coming driving a Scooter bearing registration No. GCC-2880 and Salim Alabaksh Ajmeri (A-2) would be rider and they would be going with stock of contraband article – Brown Sugar towards Mirzapur through Jordan Road, Delhi Chakla traffic route. PW-3 Madarsinh Bhikhiji Solanki, PSI (Complainant), therefore, made an entry in the station diary to this effect and also informed his superior about CR.A/72/2002 4/30 JUDGMENT this secret information. Thereafter he called two panchas to the police station and made necessary preliminary panchnama and thereafter went to the place of incident along with his staff and panchas, and during the search of the person of A-2 he found contraband article – Brown Sugar weighing 443.1 gm. He, therefore called officer of the FSL. Before the search of the person of the accused who carried out, PW-3 Solanki informed the accused that he being a gazetted officer he was entitled to carry out the search. He further asked the accused that if they desired to be searched in presence of another gazetted officer or a Magistrate, the presence of such person could be arranged for. Both the accused had expressed no such desire to get themselves searched in presence of other gazetted officer or a Magistrate and indicated that PW-3 Solanki may carry out the search on their person. On recovery of the contraband article – Brown Sugar from A-2, an officer of the FSL, Photographer and a person who could weigh the seized substance, were called, and in their presence, the officer of the FSL verified that the contraband Article was Brown Sugar, and thereafter on weighing the contraband article – Brown Sugar, it was weighed 443.1 gm., and then he prepared two samples, 10 gms. each, in the presence of the panchas, for sending them to FSL. Thereafter they were handed over to PSO, and thus the raid was completed. Thereafter PW- CR.A/72/2002 5/30 JUDGMENT 3 Solanki forwarded the complaint, muddamal and the accused, along with the relevant document for registration of the offence. Pursuant thereto, the offence came to be registered against A-2, A-1 and A-3, who is not before the Court, vide CR No. 5001/2000 and thereafter investigation was handed over to PW7 – Mukundsinh Balvantsinh Raj, I.O., who after taking over the investigation, made arrangement to forward the muddamal to FSL and also proceeded to record the statement of the relevant witnesses. On receipt of the FSL report and after obtaining the sanction of superior authority, PW-3 Mukundsinh Balvantsinh Raj, I.O. filed chargesheet against all the accused in the Court of Principal Sessions Judge, City Sessions Court, Ahmedabad for commission of the offence punishable u/s 21 of the NDPS Act. 4. The learned Additional Sessions Judge, to whom the case was made over for trial, framed charge against all the accused for commission of the offence u/s 21, read with Section 29 of the NDPS Act, which was read over and explained to them. As the accused pleaded not guilty to the charge and claimed to be tried, they were put to trial in Sessions Case No. 168 of 2000. 5. In order to bring home the charge levelled against the accused, the prosecution has examined in all eight witnesses and relied upon their oral testimonies, details of which have CR.A/72/2002 6/30 JUDGMENT been given in paragraph 7 of the impugned judgement and order as under: No. Name Exh. PW-1 Bansilal Vanmalidas Soni, Panch Witness 16 PW-2 Vinod Shantilal Panchal, Panch Witness 23 PW-3 Madarsinh Bhikhaji Solanki, Complainant 24 PW-4 Rumalji Shivaji, Crime Writer Head 40 PW-5 Akaldas Raghuram Pandya, Carried muddamal of the FSL. 42 PW-6 Ghanshyamsing Kanjibhai Vaghela (PSO-DCB Crime Branch) 45 PW-7 Mukumdsinh Balvantsinh Raj, I.O. 48 PW-8 Padamsinh Damlavat 52 6. To prove the culpability of the accused, the prosecution has also produced number of documents and relied upon the contents of the same, the details of which are enumerated in para 8 of the impugned judgement and order. 7. After the recording of the evidence of the prosecution witnesses was over, the trial Court CR.A/72/2002 7/30 JUDGMENT explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement as required under Section 313 of the Code. In their further statement, the accused denied the case of the prosecution by saying that they have been falsely implicated in the case. However, they did not lead any evidence nor did they examine any witness in support of their defence. 8. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial Court held that the complicity of A-1 and A-3, who are not before the Court, has not been established, as no contraband article – Brown Sugar was recovered from them. He, therefore, acquitted A-1 and A- 3. So far as A-2 is concerned, it is held that the charge against A-2 stands proved beyond reasonable doubt as he was found with the contraband article – Brown Sugar weighing 443.1 gm. The trial Court, therefore, convicted A-2 for commission of the offence punishable under 21 of the NDPS Act and sentenced him to suffer RI for 10 years with fine of Rs.1,00,000/- and in default of payment of fine, RI for further period of 2 years. It is this judgement and order which has given rise to these two Criminal Appeals; one at the instance of A-2, who has filed Criminal Appeal No. 72 of 2002, CR.A/72/2002 8/30 JUDGMENT challenging the order of conviction and sentence passed against him and the other filed by the State of Gujarat, being Criminal Appeal No. 91 of 2002, challenging the order of acquittal of A-1. 9. Mr. Mahesh Bhavsar, learned advocate of A-2 has made the following submissions: (i) There is no independent corroboration to the case of prosecution. The evidence of so called independent panch witness PW-2 is not helpful to the prosecution case as the witness has not categorically testified as to out of the two accused from whose possession the muddamal – Brown Sugar was recovered. Therefore, the A-2 should be given benefit of doubt. (ii) As per the evidence of the PW-2, muddamal – Brown Sugar was packed in a plastic bag, whereas from the evidence, it is quite clear that the muddamal was put into a plastic container. Therefore, the recovery of the muddamal from the present accused is doubtful and it creates a doubt that muddamal seems to have been tampered subsequently and sealed again by the police. (iii) The provisions of Section 42, 50, 52, 55 and 57 of NDPS Act are not complied with. The slips bearing the signature of the panchas were not affixed with gum on the container CR.A/72/2002 9/30 JUDGMENT containing the muddamal but the slips were wrapped on the container with the string. Therefore, it appears that muddamal was not properly sealed and there were all the possibilities for substituting the substance. In support of the aforesaid submission he has relied upon the decision of this Court in 89(1) FAC 153 and 2006(1) GLH 409. Therefore, the benefit of doubt should be given to the present accused. (iv) Even sample seal which is sent to the FSL at page no. 557 of the proper book seems to be of NCD of Ahmedabad, whereas it is the case of prosecution that the plastic bottles / containers were sealed with the seal of Inspector of Police, DCB, Ahmedabad. This makes it clear that the FSL Officer has not compared the seal on plastic bottles containing on the muddamal article with the sample of the seal and mechanically made the endorsement in his report that the seal was intact and was as per the sample of the seal. Moreover, sending wrong sample of seal amounts to non-supply of sample of seal to the FSL for comparison. Therefore, the report sent by FSL is without comparing the seal on the muddamal. Thus, there is no evidence to prove that the seals found on the muddamal sent to FSL were the same that were put on the sample bottles immediately after seizure of the Narcotic substance. CR.A/72/2002 10/30 JUDGMENT Therefore, the report sent by the FSL cannot be report in respect of the substance which was seized from the accused. In support of the said submission the accused has relied upon the judgement of the Supreme Court, reported in 2005(3) SCC 59. (v) So far as the compliance of Section 50 of NDPS Act is concerned, he has relied upon the judgement of the Supreme Court reported in 2005 (5) SCC 151. In the said judgement, the Supreme Court has observed that the officer proposing to effect the search and gazetted officer in whose presence search is to be conducted cannot be the same person. The officer proposing to effect the search cannot act in dual capacity. In the present case, from the evidence of PW-3 Solanki, the main officer of raiding party who carried out the search, it becomes very clear that PW-3 Solanki put the proposal to the accused that he is a gazetted officer, however, if the accused desired, they may be searched in presence of any other gazetted officer or Magistrate. Therefore, PW-3 Solanki was the gazetted officer and he gave an option to the accused detained to be searched in his presence, to be given under Section 50. Therefore, the requirement of Section 50 of the NDPS Act was not satisfied because the officer proposing to effect the search cannot act in dual capacity, CR.A/72/2002 11/30 JUDGMENT first as an officer authorized under Section 42 to search a person and second as a gazetted officer in whose presence the accused may opt to be searched. Therefore, the recovery of Narcotic substance seems to be doubtful and the accused has to be given benefit of doubt. (vi) Even the muddamal Narcotic was in custody of PW-3 Solanki for a period of 45 minutes to 1 hour when it was brought at the shop of the merchant for the purpose of weighing the same. Therefore, there was all chances of substitution of muddamal Narcotic substance. Therefore, the benefit of doubt should be given to the present accused and the present accused may be acquitted of the charges leveled against him. (vii) Even exh.29 – Panchnama makes it very clear that in FSL sample 10 gm. of Narcotic substance was packed whereas exh. 18 makes it very clear that 25 gm. Narcotic substance was received back from the FSL. Therefore, the substance, which was sent for testing to the FSL, may be different and not the substance seized from the accused. Therefore, the benefit of doubt should be given to the present accused and the present accused may be acquitted of the charges leveled against him. On the aforesaid premises, he submitted that the Appeal deserves to be allowed by quashing CR.A/72/2002 12/30 JUDGMENT and setting aside the impugned judgement and order and acquitting A-2 of the offence with which he was charged. He, therefore, urged to allow Criminal Appeal no. 72 of 2002. 10.Mr. M.H.Barajia, learned advocate of A-1 against whom Criminal Appeal No. 91 of 2002 has been filed, has submitted that the acquittal recorded in favour of A-1 is on the basis of the evidence adduced by the prosecution and according to him A-1 was not found with the contraband article – Brown Sugar, and therefore, the impugned judgement and order does not call for any interference by this Court while exercising power u/s 378 of the Code. He also highlighted the settled principle enunciated by the Supreme Court as to under what circumstances the appellate Court can interfere in an order of acquittal, which is recorded on the evidence adduced before the trial Court. According to him, even if two views, on the facts and in the circumstances of the case are possible, then also the appellate Court cannot substitute its views by recording conviction by upsetting the acquittal recorded by the trial Court. He, therefore, submitted that the Criminal Appeal filed by the State of Gujarat, challenging the acquittal of A-1, deserves to be dismissed by confirming the judgement and order of acquittal recorded in favour of A-1. He, therefore, urged to dismiss the Criminal Appeal No. 91 of 2002. CR.A/72/2002 13/30 JUDGMENT 11.Per contra Mr. K.T.Dave, learned APP for the State of Gujarat submitted that, by voluminous evidence produced by the prosecution, the complicity of A-2 is proved beyond reasonable doubt. He was caught red-handed with contraband article – Brown Sugar when he was apprehended by the police officer in the presence of panchnamas. So far as A-1 is concerned, according to him he was the rider of the scooter, therefore, he had a knowledge that A-2 was having contraband article – Brown Sugar with him. Therefore, the trial Court has not appreciated the evidence in proper perspective so far as A-1 is concerned. Therefore, according to him, so far as conviction recorded against the A-2 is concerned, it does not call for any interference whereas order of acquittal recorded in favour of A-1 requires interference of this Court by allowing the Appeal filed against him and thereby convicting him of the offence with which he was charged. He, therefore, urged to dismiss Criminal Appeal No. 71 of 2002 filed by A-2 and allow the Criminal Appeal No. 91 of 2002 filed by the State of Gujarat challenging the acquittal of A-1. 12.This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on CR.A/72/2002 14/30 JUDGMENT record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with NDPS cases, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence against A-2 and order of acquittal in favour of A-1. 13.At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder. 14.In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 SC 7. In para 1 of the said judgment, the Supreme Court has observed as under: “The Statement of Objects and Reasons of the NDPS Act categorically records the CR.A/72/2002 15/30 JUDGMENT inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith”. 15.In view of the stringent penal provisions and harsh punishment provided thereunder and in view of the observations made by the Supreme Court in the above referred to judgment, we have to find out as to whether in instant case strict compliance of the safeguards provided under the statute have been observed by the Police Inspector during the course of search of the accused and seizure of the muddamal, contraband article, brown sugar and the trial court has considered the evidence in proper perspective and rightly recorded the order of acquittal in CR.A/72/2002 16/30 JUDGMENT favour of A-1. 16.In this connection we shall first refer to oral testimony of PW-3 Madarsinh Bhikhaji Solanki (Complainant) at Exh.24, who has arranged for raid and lodged the complaint on behalf of the State of Gujarat, against all the three accused persons. He has, inter alia, testified that he has received secret information that one Yasminbanu Noormohmed Shaikh, A-3, who was not before the Court, was running the business of selling contraband article – Brown Sugar through her persons in her house, situated at Mamuji Khancho Dadamiya Gali, Dariyapur. The information further stipulated that one Abbasmiya Sharifmiya Saiyed (A-1) would be coming driving a Scooter bearing registration No. GCC-2880 and Salim Alabaksh Ajmeri (A-2) would be rider and they would be going with stock of contraband article – Brown Sugar towards Mirzapur through Jordan Road, Delhi Chakla traffic route. PW-3 Madarsinh Bhikhiji Solanki, PSI (Complainant), therefore, made an entry in the station diary to this effect and also informed his superior about this secret information. Thereafter he called two panchas to the police station and made necessary preliminary panchnama and thereafter went to the place of incident along with his staff and panchas, and during the search of the person of A-2 he found contraband article – Brown Sugar weighing 443.1 gm. He, therefore called officer CR.A/72/2002 17/30 JUDGMENT of the FSL. Before the search of the person of the accused who carried out, PW-3 Solanki informed the accused that he being a gazetted officer he was entitled to carry out the search. He further asked the accused that if they desired to be searched in presence of another gazetted officer or a Magistrate, the presence of such person could be arranged for. Both the accused had expressed no such desire to get themselves searched in presence of other gazetted officer or a Magistrate and indicated that PW-3 Solanki may carry out the search on their person. On recovery of the contraband article – Brown Sugar from A-2, an officer of the FSL, Photographer and a person who could weigh the seized substance, were called, and in their presence, the officer of the FSL verified that the contraband Article was Brown Sugar, and thereafter on weighing the contraband article – Brown Sugar, it was weighed 443.1 gm., and then he prepared two samples, 10 gms. each, in the presence of the panchas, for sending them to FSL. Thereafter they were handed over to PSO, and thus the raid was completed. Thereafter PW- 3 Solanki forwarded the complaint, muddamal and the accused, along with the relevant document for registration of the offence. Pursuant thereto, the offence came to be registered against A-2, A-1 and A-3, who is not before the Court, vide CR No. 5001/2000 and thereafter investigation was handed over to PW7 – CR.A/72/2002 18/30 JUDGMENT Mukundsinh Balvantsinh Raj, I.O., who after taking over the investigation, made arrangement to forward the muddamal to FSL and also proceeded to record the statement of the relevant witnesses. On receipt of the FSL report and after obtaining the sanction of superior authority, PW-3 Mukundsinh Balvantsinh Raj, I.O. filed chargesheet against all the accused in the Court of Principal Sessions Judge, City Sessions Court, Ahmedabad for commission of the offence punishable u/s 21 of the NDPS Act. 17.The prosecution thereafter has relied upon the oral testimony of PW-4 Rumalji Shivaji, PSI Crime Branch, Ahmedabad, working as a Crime Writer Head. He has testified that the muddamal – Brown Sugar was received by him which was kept in his custody and gave it to PW-5 Akaldas Raghuram Pandya at Exh.42 for entrusting the same to FSL. 18.The prosecution thereafter has relied upon the oral testimony of PW-6 Ghanshyamsingh Kanjibhai Vaghela, PSO – DCB Crime Branch at Exh. 45 who registered the offence against the accused on receipt of the complaint, panchnama, muddamal and report sent by PW-3 – Madarsinh Bhikhaji Solanki. 19.The prosecution thereafter relied upon the oral testimony of PW-7 Mukundsinh Balvantsinh Raj, I.O. at Exh. 48 who was entrusted the CR.A/72/2002 19/30 JUDGMENT investigation of the case. Lastly the prosecution has relied upon the oral testimony of PW-8 Padamsinh Damlavat at Exh.52 who is maintaining the register in police station. 20.We have perused the evidence very minutely. So far as the evidence against A-2 is concerned, according to us the prosecution has established the guilt of the accused for commission of the offence u/s 21 of the NDPS Act beyond reasonable doubt. He was found with conscious possession of the contraband article – Brown Sugar weighing 443.1 gm., the value of which in the international market is Rs.46,31,000/-. The very fact that the said narcotic substance – Brown Sugar was recovered from inside the shirt which