CR.A/904/2000 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 904 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 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 ? ========================================================= ALAMKHAN MAHMADJAN PATHAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR EE SAIYED for Appellant(s) : 1 MRS MADHUBEN SHARMA for Appellant(s) : 2 MS. ARCHNA RAVAL APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 9/1/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/904/2000 2/39 JUDGMENT 1. In this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short), challenge is to the correctness of the judgment and order dated 8.9.2000 rendered in Sessions Case No.300 of 1998 by the learned Additional City Sessions Judge, Court No.18, Ahmedabad by which the appellant No.1 ('A-1' for short) has been convicted for the offence under Sections 20 (b) (ii), 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) and sentenced to suffer R.I. for 15 years and fine of Rs.2 lakhs i.d., S.I. for 2 years for the offence under Section 20 (b) (ii) of the NDPS Act, RI for 15 years and fine of Rs.2 lakhs i.d., SI for two years for the offence under Section 21 of the NDPS Act and RI for 15 years and fine of Rs. 2 lakhs i.d., SI for 2 years for the offence under Section 29 of the NDPS Act. It is also ordered that the sentence under Sections 20 (b) (ii) and 21 of the NDPS Act shall run without concurrence i.e., separately whereas sentence under Section 29 of the NDPS Act shall run concurrently with the sentence under CR.A/904/2000 3/39 JUDGMENT Sections 20 (b) (ii) and 21 of the NDPS Act whereas appellant No.2 ('A-2' for short) has been convicted for the offence under Sections 20 (b) (ii) and 29 of the NDPS Act and sentenced to suffer RI for ten years and fine of Rs.1 lakh i.d., SI for one year for the offence under Section 20 (b) (ii) of the NDPS Act and RI for 10 years and fine of Rs.1 lakh i.d., SI for one year for the offence under Section 29 of the NDPS Act. It is also ordered that both the sentences shall run concurrently. 2. Since the facts of the case have been detailed in the judgment of the trial court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed for deciding this appeal, as disclosed from the FIR and unfolded during trial, are as under: 2.1. P.W.2, Krushnakumar Chandrasinh Chudasma, PI, Housebreaking Squad, Crime Branch, Ahmedabad CR.A/904/2000 4/39 JUDGMENT along with his staff members were present at the office of Crime Branch, Gaekwad Haveli, Ahmedabad on 24.7.1998 when he received a secret information that one person named Alamkhan Mahamadjan Pathan (A-1), resident of Hamid Flat No.1, Julywada, Ahmedabad was in possession of contraband article Charas and was disbursing the same through carrier. He recorded the said information in the station diary and conveyed the said information to his higher officer. He thereafter requisitioned the service of two panchas through police constables and the panchas were conveyed the secret information and panchnama was prepared. Thereafter they started to the place as per the description given in the secret information for raid. In the said flat they found A-1 and A-2 and the PI Chudasma informed A-1 and A-2 about the secret information received by him and told them that they want to search them. They were informed that if they wanted to be searched in presence of a Magistrate or a Gazetted officer, he may make arrangement for the same. But A-1 and A-2 declined and CR.A/904/2000 5/39 JUDGMENT therefore they were searched by the police officer in presence of the raiding party and panchas. From the right pocket of the shirt, four intact polyethylene bags were found wherein there were powder. Thereafter a search of A-2 was made before the raiding party and the panchas and from the left pocket of his pent, one white polyethylene bag was found wherein a black half round substance was found and that was recognized as charas by its specific smell. Thereafter police called FSL Officer and photographer on the spot and a person was called for weighing the substance. Thereafter from the second room of the flat, in presence of the raiding party and the panchas a search was made and from one cupboard situated at the western side wall, a heavy bag of Minia (wax) which was tagged by thread was found and on opening the bag, 2 polyethylene bags were found in which black coloured round as well as egg shape (oval) in pieces were found which was recognized as charas by its specific smell. P.W.3, Rajeshkumar Rameshchandra Mehta, FSL officer informed the CR.A/904/2000 6/39 JUDGMENT police that the contraband substance recovered from the personal possession of the accused and also found from the cupboard of the second room of the flat occupied by A-1 was charas. The FSL officer had examined the powder of 4 polyethylene bags and was opined that it was brown sugar. P.W.4, Dineshbhai Vadilal Shah weighed the substances found in the polyethylene bags and it was weighing 20 grams and individual eight was 5 milligram per polyethylene bag. The contraband pieces of charas which were found from the plastic bags from A-2 were weighed and was of 103 grams and without polyethylene bag it was found 101 grams. Thereafter one bag which was found from the cupboard and from that bag two polyethylene bags were found and he weight of the substance of first bag was 3.590 Kgs. and without bag it was of 3.579 Kgs. The substance of second polyethylene bag was found 2.988 Kgs. and without polyethylene bag it was found 2.970 Kgs. Thereafter samples were taken and the contraband articles were sealed as per the requirement and sent them to FSL for analysis. Thereafter PI CR.A/904/2000 7/39 JUDGMENT Chudasma DCB Ahmedabad City lodged a FIR against both the accused under the provisions of NDPS Act being CR No. DCB (Prohibition) No. 5017/98. Thereafter investigation was handed over to PI Chandrasinh Naransinh Rajput who recorded the statement of witnesses. After receipt of the report from the FSL certifying that the muddamal sent for analysis were charas and brown sugar and as sufficient incriminating evidence was found against both the accused persons, A-1 was charge- sheeted for commission of the offences under Sections 20 (ii) (b), 21 and 29 of the NDPS Act whereas A-2 was charge-sheeted for the offences under Sections 20 (ii) and 29 of the NDPS Act in the Court of learned Metropolitan Magistrate, Court No.11, Ahmedabad. Since the offence under the NDPS Act are exclusively triable by a Court of Sessions, the learned Metropolitan Magistrate committed the case to the City Sessions Court, Ahmedabad where it is registered as Sessions Case No.300 of 1998. 2.2.The learned Additional City Sessions Judge, CR.A/904/2000 8/39 JUDGMENT Court No.18, Ahmedabad to whom the case was made over for trial, framed charge against both the accused for commission of the offences alleged against them as per the charge-sheet which was read over and explained to them to which they pleaded not guilty and claimed to be tried and thereupon they were put to trial by the learned Additional City Sessions Judge. 2.3.To prove the culpability of the accused, the prosecution has examined and relied upon the oral testimonies of 11 witnesses, the details of which are given in paragraph 5 of the judgment. 2.4.To prove the case against the accused, the prosecution has produced a number of documents and relied upon the contents of the same, the details of which are mentioned in paragraph 6 of the impugned judgment and order. 2.5.After recording of the evidence of the prosecution witnesses was over, the trial court explained to both the accused the circumstances CR.A/904/2000 9/39 JUDGMENT appeared 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 they stated that false case has been filed against them. They stated that they are not residing at the place from where the contraband articles were recovered. However, they did not lead any evidence nor did they produce any witness in support of their defence. 2.6.On appraisal of the evidence, the trial court held that the prosecution has proved that both the accused were found in the house with contraband articles and, therefore, their complicity in commission of the offence has been duly established and consequently both the accused have been convicted for commission of the offences with which they were charged and accordingly they have been sentenced to undergo imprisonment for various terms to which reference is made in earlier paragraphs of this judgment which has given rise to instant appeal at the CR.A/904/2000 10/39 JUDGMENT instance of both the accused persons. 3. Mr. E.E. Saiyed, learned advocate for A-1 and Ms. Madhuben Sharma, learned advocate for A-2 have assailed the judgment and order of the trial court by contending that the prosecution has examined the members of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non-compliance of the mandatory as well as statutory provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. It is also highlighted by them that the prosecution has not been able to successfully establish that the contraband articles which were sent to FSL were not tampered with during the course of their journey from the stage of seizing and sealing till their reaching the FSL. It is also emphatically submitted by them that the panch witness who is a rickshaw driver was under the control and influence of the investigating officer and, therefore, he has deposed as per the CR.A/904/2000 11/39 JUDGMENT desire of the investigating officer and, therefore, the panchnama lost its independence and, therefore, no reliance can be placed on his testimony. It is also high lighted by them that the trial court has convicted both the accused persons under Section 29 of the NDPS Act. According to them, even if the prosecution case is believed in its entirety then also both the accused were allegedly found with the contraband articles and, therefore, they were separately tried for the offences under sections 20 (ii) (b) and 21 of the NDPS Act. Therefore, both the accused can be held liable for their independent act and hence there is no question of convicting them under Section 29 of the NDPS Act. On the aforesaid premises, it is contended by them that the prosecution has not been able to establish the guilt of the accused persons and, therefore, the impugned judgment and order passed by the trial court deserves to be quashed and set aside by acquitting both the accused. They, therefore, urged to allow the appeal. CR.A/904/2000 12/39 JUDGMENT 3.1. Alternatively, it is submitted by Mr. E.E. Saiyed, learned advocate for A-1 that so far as sentenced imposed on A-1 is concerned, a lenient view may be taken. According to him, minimum sentence prescribed for commission of the offence under Sections 20 (ii) (b) and 21 of the NDPS Act is RI for ten years and in the instant case the trial court has imposed sentence of RI for 15 years and fine of Rs.2 lakhs i.d., SI for two years and also ordered that both the sentences shall run separately which is harsh and disproportionate to the guilt of the accused. He, therefore, urged that the sentence may be suitably modified and reduced to the minimum sentence of RI for 10 years and also prayed that an order may be passed that both the sentences shall run concurrently. 4. Per contra, Ms. Archna Raval, learned APP for the respondent – State of Gujarat, has submitted that by voluminous evidence produced by the prosecution, complicity of both the accused is proved beyond reasonable doubt. A-1 was found CR.A/904/2000 13/39 JUDGMENT with contraband articles charas and brown sugar whereas A-2 was found with contraband article charas in the presence of the members of the raiding party as well as panchas and thereafter the contraband articles were seized, samples were drawn and sealed as per the sealing procedure. The said muddamal articles were sent to FSL for chemical analysis and the report of the FSL certified that the muddamal articles sent for analysis were charas and brown sugar. It is also highlighted by her that the prosecution has successfully proved that from the stage of seizure and sealing till the samples were reached for analysis at FSL the samples were in the safe custody of the police personnel and in this case the prosecution has examined the police officers in whose safe custody the samples were kept from the stage of seizing, sealing and till they were delivered at FSL for chemical analysis. She has also emphatically submitted that independent witnesses like panch witnesses have also supported the prosecution case and stated that in their presence the contraband articles were CR.A/904/2000 14/39 JUDGMENT seized from the accused and thereafter they were sealed and, therefore, the contents of the panchnama are proved. On the aforesaid premises, it is contended by her that the prosecution has established the case against both the accused persons beyond reasonable doubt and, therefore, the trial court was justified in recording the order of conviction and sentence against both the accused. She, therefore, contended that the appeal does not warrant interference of this court and it deserves to be dismissed as the same lacks merit. She, therefore, urged to dismiss the appeal. 4.1. So far as the alternative submission made by Mr. EE Saiyed, learned advocate for A-1 so far as reduction of sentence is concerned, it is submitted by her that it is true that for commission of the offences under sections 20 (ii) (b) and 21 of the NDPS Act the minimum sentence prescribed is RI for ten years which may extend to RI for 20 years. In instant case, the trial court has imposed RI for 15 years and, according CR.A/904/2000 15/39 JUDGMENT to her, looking the quantity of contraband articles, i.e., 6.578 Kgs. of charas and 20 grams of brown sugar, which were seized from the accused, no leniency can be shown towards him and the sentence imposed on him cannot be reduced. 5. 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 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 learned trial Judge 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 CR.A/904/2000 16/39 JUDGMENT conviction and sentence. 6. 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. 7. 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 inadequacy of the existing legislation to combat illicit CR.A/904/2000 17/39 JUDGMENT 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”. 8. In view of the stringent penal provisions and harsh punishment provided thereunder and in view CR.A/904/2000 18/39 JUDGMENT 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 articles, charas and brown sugar. 9. In order to prove the complicity of both the accused persons, the prosecution has first examined and relied upon the oral testimony of P.W.1, Sureshkumar Lalshankar, a rickshaw driver, who is a panch witness, at Ex.16. He has inter alia testified as per the contents of the panchnama. He has supported the prosecution case. From his evidence, the contents of the panchnama are proved. He has unequivocally stated in his oral testimony before the Court that in his presence the contraband articles, charas and brown sugar were recovered from the accused persons and he has also deposed that in his CR.A/904/2000 19/39 JUDGMENT presence the seizing, sealing, etc., procedures were completed. 9.1. The prosecution has thereafter examined and relied upon the oral testimony of P.W.2, K.C. Chudasama, who was Police Inspector, Crime Branch, Ahmedabad, at the relevant time, at Ex.26. He has inter alia testified that he has received secret information on 24.7.1998 when he was on duty and he recorded the said information in the station diary and also informed his superior officers. He has also testified that he had requisitioned the service of two panchas through two police constables and when the panchas were brought, he conveyed the said secret information to the panchas as well as to the members of the raiding party and thereafter made necessary arrangement for the trap. He has emphatically stated about the compliance of Sections 42 as well as 50 of the NDPS Act and after recovery of the muddamal contraband articles in presence of the panchas as well as CR.A/904/2000 20/39 JUDGMENT raiding party, he took samples and also sealed the same as per the procedure in presence of the panchas and members of the raiding party and then handed over the muddamal to responsible police officer of the police station and thereafter made necessary arrangement for sending the same to FSL. On completion of the raid, he has arrested the accused as well as filed complaint before the DCB Police Station which is on record at Ex.38. A conjoint reading of the oral testimony of this witness as well as the complaint at Ex.38, it is seen that he has deposed before the court as per the contents of the complaint and he has not exaggerated anything and he has given the complete account as to how the secret information was received, how the panchas were called, how the raid was carried and also how the contraband articles were recovered from both the accused and how the formalities regarding seizure, sealing, etc.,under the NDPS Act were completed and also with regard to the filing of the complaint. CR.A/904/2000 21/39 JUDGMENT 9.2.The prosecution has thereafter examined and relied upon the evidence of P.W.3, Rajeshkumar Rameshchandra Mehta, Scientific Officer of FSL, Ahmedabad at Ex.42. He has testified that during preliminary inquiry, the substances recovered from the accused were narcotic substances. 9.3.The prosecution has thereafter examined and relied upon the evidenced of P.W.4, Dineshkumar Vadilal Shah, who is the person who weighed the contraband articles seized from the accused persons, at Ex.44. He has deposed the part played by him after the contraband articles were recovered from the accused during the raid, as deposed by P.W.2, KC Chudasama. 9.4. The prosecution has thereafter examined and relied upon the evidence of P.W.5, Madarsinh Mansing Dabhi, Head Constable, Shahibaug, Ahmedabad, Ex.45. He was the PSO at the relevant time and he has also deposed on the same line as deposed by P.W.2, KC Chudasama. He has also inter CR.A/904/2000 22/39 JUDGMENT alia testified that he has registered the complaint filed P.W.2 and on the basis of the said complaint he has entered the contents of the complaint in the station diary. 9.5. The prosecution has thereafter examined and relied upon the oral testimony of P.W.6, Rumalji Shivaji Sodha, the then Writer-head, Crime Branch, ACB, Ahmedabad, at Ex.48. He has inter alia testified that he has received the muddamal and kept the muddamal - contraband articles recovered from the accused, which was handed over to him by P.W.2, KC Chudasma and kept the same in his safe custody. 9.6. The prosecution has thereafter examined and relied upon the oral testimony of P.W.7, Markand Kantilal Pathak, Scientific Officer, FSL, Ahmedabad, Ex.50. He has inter alia testified that he has received the muddamal sent for chemical analysis in sealed condition and on analysis he found that the same were narcotic CR.A/904/2000 23/39 JUDGMENT substances and accordingly he made report to that effect, which is at Ex.51. A conjoint reading of the evidence of this witness at Ex.50 and the report at Ex.51, shows that the contraband articles recovered from the accused were charas and brown sugar. 9.7. The prosecution has thereafter examined and relied upon the evidence of P.W.8, Gopalsinh Nathusinh Rathod, Head Constable, Crime Branch, Ahmedabad, Ex.53. He was a member of the raiding party and he has deposed in the same line as deposed by P.W.2, KC Chudasma. 9.8. The prosecution has thereafter examined and relied upon the evidence of P.W.9, Manibhai Ganeshbhai Rohit, Head Clerk, Tax Department, Ahmedabad Municipal Corporation, Ex.58. He has inter alia testified that the flat in which the raid was carried out belonged to A-1. 9.9. The prosecution has thereafter examined CR.A/904/2000 24/39 JUDGMENT and relied upon the evidence of P.W.10, Padamsinh Darjansinh Bamlavat, Head Constable, Leader Branch, DCB Crime, Gaekwad Haveli, Ahmedabad, Ex.67. He has inter alia testified that he has received a letter from K.C. Chudasma, PI which he has registered in the Inward Register. 9.10. The prosecution has thereafter examined and relied upon the evidence of P.W.11, Chandrasinh Naransinh Rajput, PSI, DCB Crime Branch, Ahmedabad, who was a member of the raiding party as well as the investigating officer, Ex.70. He has deposed as per the deposition of P.W.2, KC Chudasma as well as other police officers and the steps taken by him till the charge-sheet is filed against the accused. 9.11. It may be appreciated that all the above mentioned witnesses were cross-examined at