CR.A/568/2000 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 568 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL AND HON'BLE MR.JUSTICE H.B.ANTANI ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not? 3 Whether their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the civil judge? ============================================================== GOPILAL SHRIRAMJI JAT - Appellant Versus STATE OF GUJARAT – Respondent ============================================================== Appearance : MR. I.M. KAPOOR FOR RAJESH M. AGRAWAL for Appellant. MS. HANSA PUNANI, A.P.P. for Respondent. ===================================================================== CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE H.B.ANTANI Date : 03/08/2005 ORAL JUDGMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) 1. Instant appeal, filed under Section 374 (2) of the Code of Criminal Procedure (“the Code”, for short), is CR.A/568/2000 2/29 JUDGMENT directed against judgment dated June 25, 2000, rendered by the learned Additional Sessions Judge, Anand, in Special Sessions Case No. 3 of 1999, by which the appellant is convicted under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (“the Act”, for short) and sentenced to suffer R.I. for 10 years and fine of Rs. 1,00,000/- (Rupees One Lakh Only), in default, S.I. for 1 year. 2. The facts emerging from the record of the case are as under: In November 1998, Mr. R.D. Chaudhary, was discharging duties as Circle Police Inspector, Anand. On November 12, 1998, he was present in Vidhyanagar Police Station. He received an information that the appellant was possessing and selling opium in his house, i.e. Bungalow No. 52, situated in Karnavati Society, Anand. On receipt of information, necessary entry in the Register maintained at Vidhyanagar Police Station was made by him. He, thereafter, requisitioned services of two panch- witnesses and arranged a raid. The first part of panchnama was drawn at the Police Station itself. Mr.Chaudhary, thereafter, in the company of other police personnel and panch-witnesses, proceeded towards the CR.A/568/2000 3/29 JUDGMENT house of the appellant. On reaching the house of the appellant, he found that the appellant was present. He made the appellant aware about the information received by him and informed him that it was necessary to search his house. Presuming that the provisions of Section 50 of the Act were applicable to the facts of instant case, he offered the appellant to search his house in presence of a Gazetted Officer or a Magistrate. The appellant expressed his desire that the search be carried out in presence of a Gazetted Officer. Therefore, Circle Police Inspector Mr. Chaudhary, despatched one Head Constable, Hira, to inform the Divisional Police Officer and request him to come to the house of the appellant. Accordingly, Head Constable, Hira, informed the Divisional Police Officer, Anand. Mr. R. M. Parmar, who was then Divisional Police Officer, Anand, arrived at the house of the appellant. Thereafter, the house of the appellant was searched. From the building itself, nothing incriminating was found. However, it was noticed that the house had an adala i.e. a place where buffaloes are being tethered. On search of the adala, a pillow was found, which was open from one side. It was noticed that the pillow was stuffed with cotton. On taking out cotton from the pillow, three plastic bags were found, containing semi-liquid substance like opium. On further CR.A/568/2000 4/29 JUDGMENT search of the pillow, a pillow-cover was found, containing: 9 Currency Notes each of Rs. 500/- denomination, 195 Currency Notes each of Rs. 100/- denomination, and 280 Currency Notes each of Rs. 10/- denomination. The search of kitchen of the house resulted into a find of a balance-scales with measures of weight. The substance found in the plastic bags was prima facie ascertained to be opium by smelling. It was necessary to ascertain weight of the substance found in each of the three plastic bags. Therefore, Goldsmith, Jayantibhai Bhailalbhai Soni, was summoned. He weighed the substance found in the three plastic-bags, the total weight of which was 370 gms. The plastic-bags were, thereafter, tied with twine and placed in a cloth bag, wherein slips bearing signatures of panch-witnesses were placed. On the cloth bag, official stamps of the Divisional Police Officer, Anand and the Vidhyanagar Police Station were applied. Thereafter, the cloth bag was sealed. Circle Police Inspector Mr. Chaudhary, demanded from the appellant any document authorising him to possess and sell the opium. However, the appellant could not produce the same. He was, therefore, arrested. The second part of panchnama indicating search and seizure of contraband item was drawn, which was signed by the two panch-witnesses; the Divisional Police Officer; CR.A/568/2000 5/29 JUDGMENT Circle Police Inspector Mr. Chaudhary; the appellant as well as his wife. As commission of offence punishable under the Act was disclosed, Circle Police Inspector Mr. Chaudhary, lodged his complaint before the Divisional Police Officer. The Divisional Police Officer forwarded the complaint, the panchnama, the muddamal, etc. to P.S.O. Of Vidhyanagar Police Station. On the basis of the complaint of Mr. Chaudhary, offence punishable under the Act was registered against the appellant. Further investigation in this case was made by Mr. K.H. Desai, who was then Police Sub-Inspector of Vidhyanagar Police Station. The muddamal seized was sent to F.S.L. for analysis. The report of the analysis indicated that the substances analysed were opium within the meaning of the Act. 3. On completion of investigation, the appellant was charge-sheeted in the Court of learned Special Judge, Anand, on the basis of which, Special Sessions Case No. 3 of 1999 was registered. The learned Additional Sessions Judge, Anand, to whom the case was made over for trial, framed necessary charge against the appellant at Exh. 6. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined – (1) panch, Dhanabhai CR.A/568/2000 6/29 JUDGMENT Somabhai as P.W. 1, at Exh. 9; (2) panch, Jayantibhai Dhanjibhai as P.W. 2, at Exh. 13; (3) Police S.O., Raijibhai Punambhai as P.W. 3 at Exh. 14; (4) Soni Jayantibhai Bhailalbhai as P.W. 4, at Exh. 18; (5) Circle Police Inspector, Mr. Ramsinhbhai Dasrathbhai Chaudhary as P.W. 5, at Exh. 19; (6) Divisional Police Officer, Mr. Ramabhai Manabhai Parmar as P.W. 6, at Exh. 22; and (7) Investigating Officer, Mr. Karamsinh Harjibhai Desai as P.W. 7 at Exh. 23, to prove its case against the appellant. The prosecution also produced documentary evidence such as, the slips bearing signatures of the panch-witnesses on three samples at Exhs. 10, 11 and 12 respectively; the entry made in the Register maintained at Vidhyanagar Police Station after receipt of information at Exh. 16; the entry indicating receipt of the muddamal; the complaint lodged by Circle Police Inspector Mr. Chaudhary, against the appellant, etc. at Exh. 15; the panchnama indicating search of house and adala, belonging to the appellant as well as find and seizure of contraband item at Exh. 21; necessary intimation sent by Circle Police Inspector, Anand, to P.S.O. Vidhyanagar at Exh. 24; the report of analysis at Exh. 28; the certificate of analysis at Exh. 29, etc., in support of its case against the appellant. CR.A/568/2000 7/29 JUDGMENT 4. After recording of evidence of prosecution- witnesses was over, the learned Judge explained to the appellant, the circumstances appearing against him in the evidence of prosecution-witnesses and recorded his further statement, as required by Section 313 of the Code. In his further statement, the claim advanced by the appellant was that he was innocent and that a false case was foisted upon him. However, no defence evidence was led by him. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved beyond reasonable doubt that the appellant was found in possession of opium weighing 370 gms without pass or permit on November 12, 1998 with scales and weights as well as cash of Rs. 28,500/- and committed offences punishable under Section 18 of the Act. The learned Judge noticed that no breach of provisions of Section 42 (2) of the Act was committed by Mr. Chaudhary, before searching the house of the appellant. The plea raised by the appellant that he was not in possession of the house from which the offending substance was found, was negatived by the learned Judge of the trial Court on the basis of testimony of police officials and contents of copy of Assessment Register of the year 1998-99, relating CR.A/568/2000 8/29 JUDGMENT to the house of the appellant. The learned Judge further found that the muddamal was kept in safe custody at Vidhyanagar Police Station and reached intact to F.S.L. for analysis. The learned Judge further noticed that the mudammal analysed was opium within the meaning of the Act. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Section 18 of the Act and imposed sentence referred to earlier by judgment dated June 5, 2000, giving rise to instant appeal. 6. Mr. I. M. Kapoor, learned Counsel appearing for Mr. R. M. Agrawal, learned Advocate of the appellant, contended that the information, received by Circle Police Inspector Mr. Chaudhary that the appellant was in possession and selling opium in his house, was not reduced into writing, and as there was breach of provisions of Section 41 (2) and / or Section 42 (1) of the Act, the conviction of the appellant should be set aside. It was argued that no report was forwarded by Circle Police Inspector Mr. Chaudhary, to his immediate official superior, as contemplated by Section 42 (2) of the Act and, therefore, the judgment impugned in the Appeal should be reversed for non-compliance of mandatory provisions of the Act. According to the learned Counsel of the appellant, P. W. 4, Soni Jayantibhai Bhailalbhai, CR.A/568/2000 9/29 JUDGMENT who is not declared hostile, has stated in his testimony that he was called for weighing the muddamal at 9.30 P.M. on November 12, 1998, whereas the evidence adduced by police officials indicates that the raid was carried out and everything, including drawing of second part of panchnama, was over before 7.15 P.M., and in view of this glaring discrepancy, the appellant should be acquitted by holding that the house of the appellant was never raided at 4.30 P.M., as claimed by Circle Police Inspector, Mr.Chaudhary. The learned Counsel emphasised that no reliable evidence is adduced by the prosecution to establish that the appellant was in exclusive possession of Bungalow No. 52, situated in Karnavati Society, Anand, and as the adala of the said Bungalow was open as well as accessible to all, the learned Judge should have disbelieved the case of the prosecution that the appellant was found in possession of opium. Elaborating this point, it was contended that the evidence on record would show that there are other members in the family of the appellant and as the appellant was not in exclusive possession of the house, his unwarranted conviction should be set aside, more particularly, when other evidence like Ration Card, etc. was not obtained by the Investigating Officer. It was argued that the testimony of P.S.O., Raijibhai, indicates that he had handed-over CR.A/568/2000 10/29 JUDGMENT the muddamal for safe custody to one Mooljibhai, whereas receipt issued by F.S.L. indicates that the muddamal was received from Mehboob Mian, as a result of which, the trial Court should have held that the muddamal samples was not kept in safe custody, and tampering with the samples was not ruled out, more particularly when neither Mooljibhai nor Mehboob Mian was examined by the prosecution. According to the learned Counsel of the appellant, the whole evidence relating to custody and safe keeping of the muddamal is neither complete nor satisfactory, and as it is not established by the prosecution that, what F.S.L. received was the muddamal seized during search of house of the appellant, the appeal should be accepted. The learned Counsel further emphasised that neither Circle Police Inspector Mr.Chaudhary, nor Divisional Police Officer Mr. Parmar nor Investigating Officer Mr.Desai, has stated in their respective testimony that the seal, bearing impression of “P.S.I. V.V. Nagar”, was used while sealing the muddamal and, therefore, the possibility of tampering with the muddamal should be viewed in the light of this deficiency obtaining in the case of the prosecution. The learned Counsel asserted that the learned Judge of the Trial Court has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be CR.A/568/2000 11/29 JUDGMENT allowed. 7. Ms. Hansa Punani, learned Additional Public Prosecutor appearing for the State, contended that not only Circle Police Inspector Mr. Chaudhary, has stated that on receipt of information, the house belonging to the appellant was searched at about 4.30 PM, but other witnesses such as Divisional Police Officer Mr. Parmar, and Investigating Officer, Mr. Desai, have also stated that the house of the appellant was searched at about 4.30 P.M.; and as this assertion of the police officers stands corroborated by contemporary document, namely, the panchnama of seizure of contraband item produced at Exh. 21 and the complaint lodged by Circle Police Inspector, Mr.Chaudhary, which is produced at Exh. 20, the plea that the house of the appellant was not searched at about 4.30 P.M., based on the testimony of Soni Jayantibhai Bhailalbhai, should not be accepted by the Court. According to the learned Counsel of the State Government, the evidence on record clinchingly establishes that the house of the appellant was searched by Circle Police Inspector, Mr.Chaudhary, in presence of Divisional Police Officer Mr. Parmar, and other police officials as well as panch-witnesses at about 4.30 P.M. on November 12, 1998 and the search had resulted into find of contraband item, CR.A/568/2000 12/29 JUDGMENT as a result of which, the claim advanced by the learned Counsel of the appellant that the house of the appellant was not searched at 4.30 P.M. should be rejected outright. What was stressed was that Circle Police Inspector Mr. Chaudhary, is a Gazetted Officer, who is empowered by appropriate notification of the State Government issued under Section 41 (2) of the Act and, therefore, it was not necessary for him to comply with the provisions of sub-section 2 of Section 42 of the Act. The learned Counsel of the State Government extensively referred to the entry made in the Register maintained at the Vidhyanagar Police Station to highlight the point that the information received was reduced into writing and pleaded that it is wrong to contend that the information received was not reduced into writing by Circle Police Inspector Mr. Chaudhary. The learned Counsel further referred to the testimony of witnesses examined by the prosecution as well as contents of certificate and contents of the copy of Assessment Register produced at Exh. 31 to point out and argued that it is satisfactorily established by the prosecution that the appellant was in possession of the house which was searched on November 12, 1998 by Circle Police Inspector Mr. Chaudhary and others. The learned Counsel contended that it is not claimed by the appellant, in his further CR.A/568/2000 13/29 JUDGMENT statement recorded under Section 313 of the Code, that he was not in possession of house, which was searched on November 12, 1998 or that the adala from where the offending substance was found was accessible to one and all, and, therefore, the plea raised by the learned Counsel of the appellant that the appellant was not in exclusive possession of the house searched on November 12, 1998 or that the adala was accessible to one and all and, therefore, the criminal liability could not have been fastened on the appellant, should not be accepted by the Court. Dealing with the point regarding safe custody of the muddamal, it was argued that soon after search and seizure, the muddamal was handed-over for safe custody to P.S.O., Raijibhai, of Vidhyanagar Police Station, who in turn had handed-over the same to Mooljibhai, and as the record indicates that after preparing forwarding letter dated November 12, 1998, the muddamal was sent to F.S.L. on November 13, 1998, it would be too far-fetched to hold that there was possibility of tampering with the muddamal. According to the learned Counsel of the State Government, the report of the F.S.L. indicates that the muddamal was found to be properly sealed and intact, which in turn, rules out the possibility of tampering and, therefore, the plea that the muddamal was not kept in safe custody or that the possibility of tampering with CR.A/568/2000 14/29 JUDGMENT the same was not ruled out, should be rejected by the Court. The learned Counsel of the State Government asserted that cogent and convincing reasons have been assigned by the learned Judge of the Trial Court, who had advantage of observing demenour of the witnesses for convicting the appellant under Section 18 of the Act, and as the leaned Counsel of the appellant has failed to dislodge those weighty reasons, the appeal which lacks merits, should be dismissed. 8. This Court has heard Mr. I. M. Kapoor, learned Counsel of the appellant, and Ms. Hansa Punani, learned Additional Public Prosecutor, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 9. The plea that information received by Circle Police Inspector Mr. Chaudhary, was not reduced into writing by him, as required by Section 41 (2) and / or Section 42 (2) of the Act and, therefore, the judgment impugned in the appeal should be reversed, has no substance. From the testimony of Circle Police Inspector, Mr.Chaudhary, recorded at Exh. 19, it is evident that he had received CR.A/568/2000 15/29 JUDGMENT the information between 3.30 P.M. to 3.40 P.M., when he was present at Vidhyanagar Police Station. In paragraph-2 of his testimony, he has claimed that on receipt of information, necessary entry was made in the Register maintained at Vidhyanagar Police Station. The extract of the entry is produced by him at Exh. 15. It is also stated by him that on receipt of information, he had requisitioned the services of two panch-witnesses and drawn the first part of the panchnama at the Police Station itself. A bare glance at the entry and the introductory part of the panchnama makes it clear that information received by him was reduced into writing and reflected in those documents. Neither the procedure nor method nor mode of reducing the information into writing is prescribed either under Section 41 or Section 42 of the Act. In Abdul Salam Yusufbhai Shaikh Vs. State of Gujarat, 2003 (2) GLR 1643, the information was received by Police Inspector, Narcotics Cell that one person, named Abdul Rehman Yusufbhai Shaikh, resident of Jumma Masjid, Navsari, was selling charas. That information was not reduced into writing either in the Station Diary or in the Register, which was being kept and maintained for taking down such information. The Police Inspector, in CR.A/568/2000 16/29 JUDGMENT his deposition, did not state that he had reduced the information into writing, but mentioned that on receipt of information, he had informed about that in writing to the Deputy Superintendent of Police, Narcotics Cell. It was also further found in the said case that a report under Section 42 (2) of the Act was made by the Police Inspector to his immediate official superior, wherein information received was mentioned. This was construed by the Division Bench of this Court to mean that the information received by the Police Inspector was reduced into writing, because no procedure, method or mode of reducing the information into writing is prescribed either under Section 41 or Section 42 of the Act. Again, in Criminal Appeal No. 640 of 1998 filed by Abdul Sattar Mehbood and Another Vs. State of Gujarat decided on July 14, 2005 and July 15, 2005, it was argued that the prosecution must fail, as information received by Deputy Superintendent of Police, A.T.S., that three persons were dealing in charas near building of AbdulGani, situated in Sarkivad, Shahpur, Ahmedabad, was not reduced into writing. The evidence in the said case indicated that soon after the receipt of information, two panch-witnesses were summoned and first part of the panchnama was drawn wherein the information received was CR.A/568/2000 17/29 JUDGMENT mentioned. The Division Bench has held that mention of information in the panchnama, which was prepared immediately on receipt of information, was sufficient to establish that the information received was reduced into writing. Applying the principle laid down in the decisions quoted above to the facts of instant case, this Court finds that the reflection of information received in entry made in Register maintained at the Police Station and the panchnama is sufficient compliance of the provisions of Section 41 (2) and / or 42 (1) of the Act, which requires that the information received should be received into writing. Therefore, the appellant is not entitled to any benefit on the ground that the provisions of Section 41 (2) and / or 42 (1) of the Act are not complied with. 10. The contention that the Circle Police Inspector failed to report to his immediate officials superior, as contemplated by Section 42 (2) of the Act and, therefore, the prosecution must fail, is devoid of merits. It is relevant to notice that Circle Police Inspector Mr.Chaudhary, whose testimony is recorded at Exh. 19, is a Gazetted Officer. By notification No. GHL-14.NDS.1082- CR.A/568/2000 18/29 JUDGMENT 10577(i)-M dated 15th June, 1987, the Government of Gujarat, in exercise of its powers under sub-section 2 of Section 41 of the Narcotics Drugs And Psychotropics substances Act, 1985, has empowered for the purpose of sub-section 2 of Section 41, all the officers of the Police Department of and above the rank of Inspector of Police, posted in any part of Gujarat and other officers of the Prohibition, Excise Department, Drugs, Cosmetics Departments, etc. From the contents of the said notification, it is evident that the officers of the rank of Police Inspector and above can exercise the power under sub-section (2) of Section 41 of the Act. In Kamlesh Parmanand Gangwar Vs. State of Gujarat, 1999 (3) GLR 2119, the Division Bench of this Court, has construed the provisions of Section 42 of the Act and held that the requirement of Section 42 (2) of the Act would be necessary to be met with only when the officer making the entry, search, seizure or arrest is an officer falling under Section 42 (1) of the N.D.P.S. Act, but where an officer falling under the category of Section 41 (2) of the N.D.P.S. Act carries out the entry, search, seizure or arrest, the requirement of Section 42 (2) would not be necessary to be met with. CR.A/568/2000 19/29 JUDGMENT In M. Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449, the Supreme Court has also construed the provisions of Section 42 (2) and 41 (2) of the Act and held that Section 42 (2) of the Act would not be applicable when search, seizure, etc. is conducted by a Gazetted Officer under Sections 41 (2) and (3) of the Act. The Supreme Court has explained that Section 41 (2) enables the Central Government or the State Government, as the case may be, to empower an officer of a Gazetted rank, who can either himself act or authorise his subordinate on the terms stated in the Section. What is ruled by the Supreme Court is that, under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer, but on an officer empowered under sub-section (1) of Section 42, there are additional checks and balances, as provided