IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 45 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI 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? -------------------------------------------------------- S.P.SHARMA,INSPECTOR (PREVNT.) Versus KANIRAM S/O.LALAJI BANJARA -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 45 of 1993 MR YATIN SONI for Appellant/Org.Complainant MR MJ BUDDHBHATTI for Respondent No. 1 MR BY MANKAD APP for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE H.H.MEHTA Date of decision: 07/08/2002 CAV JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) #. Original complainant Shri S.P. Sharma, the Inspector (Preventive) Central Bureau of Narcotics, Office of the Deputy Narcotics Commissioner, Neemuch, Madhya Pradesh has by preferring this appeal under Section 378 (4) of the Criminal Procedure Code, 1973 (for short "Cr.P.C.") challenged the correctness and legality of the judgement Ex. 79 dated 24.1.1992 rendered by the learned Sessions Judge, Banaskantha District, Palanpur in Sessions Case No. 173/90 by which, original accused i.e. present respondent No. 1 was ordered to be acquitted by giving benefit of doubt from the case, in which, charge was framed against him for an offence punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act"). #. The facts leading to this present appeal in nutshell are as follows :- 2.1 The complainant Shri S.P. Sharma was, at relevant point of time, serving as Inspector (Preventive), Central Bureau of Narcotics, Office of the Deputy Narcotics Commissioner, Neemuch (M.P.) received an information on 2.6.1988. He took down that information on paper. It was signed by panch witnesses and other officers of the department of the complainant. Copy of the said information was sent to the Higher officers of the Department. A raiding party was constituted under the leadership of complainant and other officers of the department. It is the case of the prosecution that complainant is an empowered officer under Section 42 of the NDPS Act to search and seize the contraband articles under the NDPS Act. The information, which was received by the District Opium Officer was to the effect that some persons of Banzara community from Mandsaur District and near about places of Madhya Pradesh were going to sell opium at Deesa in Gujarat. 2.2 In connection with that information, the said raiding party reached Deesa on 4.6.1988. The members of the raiding party were keeping watch at railway crossing No. 30 on Kachha Route Luharwada- Vadaval villages (Deesa), on 04.06.1988. 2.3 On 06.06.1988 during watch, two persons were seen coming in suspicious circumstances from Luharvada village side, about one and half furlong away from the Railway crossing No. 30. Seeing the preventive party, both retreated to runaway. The members of the raiding party chased that two persons. Out of two persons one was caught hold of by them and another person managed his escape good. Person who was caught hold of by the members of the raiding party inquired from him about his name and address. That person gave his name to be Kaniram S/o. Lalati Banjara, resident of village Chayan, Tehsil Neemuch, Dist.: Mandsaur, Madhya Pradesh. He is respondent no. 1 in this appeal. Thereafter, Inspector (Narcotics) asked that person as to whether he wanted to give his search before the Magistrate or any Gazetted officer. The suspect i.e. respondent no. 1 voluntarily offered himself and told that the search of his bag might be taken by the Narcotic staff. It is the case of the prosecution that two bags were found hanging over the shoulder of the respondent No. 1. The members of the raiding party as per their case after observing all legal formalities in presence of two panch witnesses conducted search of the bag of the accused, which was with respondent no. 1. On searching of aforesaid bags, it was found with elastic substances which was kept in two rexine bags duly packed. Both the rexine bags were opened and black elastic substance was found therein, and it was smelt and tasted by the witnesses and the members of the raiding party. It was found to be opium. On being asked, the respondent no. 1 admitted the ownership of bag from which the opium was recovered. Further, the respondent no. 1 disclosed that in one bag out of two bags containing opium is of his companion whose name is Bhikha S/o. Ratna Banjara, village Lodakheda, Tehsil Narayangarh, Dist.: Mandsaur, (M.P.). The respondent no. 1 also informed that this opium was brought by them from Neemuch (M.P.) area to sell in small quantity to addicts in Deesa area of Gujarat State. The opium recovered was weighed in presence of the panch witnesses and the respondent no. 1. It was found that it was weighing about 6.00 Kg. in one rexine bag and 2.600 Kgs. in another rexine bag. Thus, total quantity of 8.600 Kgs. net opium was recovered and seized from the respondent no. 1 under a panchnama. It is the case of the prosecution that respondent no. 1 had no pass, permit or licence to possess the said opium. 2.4 It is the case of the prosecution that two samples each of 30 grams approximately from two rexine bags opium recovered, were drawn. Thus, in all four samples separately were drawn for chemical analysis and remaining opium was kept in the same manner in white cloth packet. Remaining opium and samples were sealed separately in presence of two independent witnesses, accused - Kaniram and members of the raiding party on the spot. All the papers were prepared at the spot. The accused Kaniram was informed of for his arrest for contravention of Section 8 of the NDPS Act, which is punishable under Section 18 of the NDPS Act. Accused Kaniram was arrested there and then his other belongings were also seized for want of evidence. All the seizure formalities were completed on the spot in presence of two independent witnesses, the accused and the members of the raiding party. 2.5 After completion of seizure formalities, Inspector (Narcotics) came at Deesa (Rural) police station alongwith seized opium, samples and accused, in company of all the members of the raiding party. Inspector (Narcotics) lodged his FIR of the case against accused Kaniram. He deposited seized opium, two samples and other seized articles at Deesa (Rural) police station. Out of four samples, two samples were kept in personal custody of the Inspector for being sent to Government Opium and Alkaloid Works, Neemuch (M.P.) for chemical analysis as per departmental procedure. He obtained receipt from the Deesa (Rural) Police Station for the above articles deposited by him. He informed the departmental officers of Narcotics Department, as per Section 57 of the NDPS Act. 2.6 Two samples out of four samples drawn out from opium seized from accused remained in personal custody of the Inspector (Narcotics) from the time of lodging FIR, till he returned to his head quarter i.e. upto 09.06.1988. Said two samples were handed over to the District Opium Officer, Neemuch III Division as soon as the Inspector reached head quarters for keeping them in safe custody and also for doing needful in the matter. The District Opium Officer, Neemuch III Division sent these samples to Govt. Opium and Alkaloid factory Neemuch vide his covering letter dated 10.6.1988, which was received by Responsible Officer of the said factory, on 10.6.1988. The Assistant Chemical Examiner, after testing both the samples in laboratory of opium factory Neemuch opined the same to be opium vide his Report No. 8047 dated 21.07.1988. It is the case of the prosecution that said substance seized from the accused was opium within the meaning of Section 2 (XV) of the NDPS Act. 2.7 The complaint, which was lodged by the complainant in Deesa (Rural) Police Station came to be registered as CR No. Prohi. 77/88. After registering the said complaint, the investigation of the crime started to be conducted by the complainant himself as he was authorised under the Notification under Sections 53 and 67 of the NDPS Act. Before apprehending the accused, the complainant had recorded a statement of the accused under Section 67 of the NDPS Act. It is the case of the prosecution that Kaniram has committed an offence punishable under Section 8 read with Section 18 and 23 of the NDPS Act. 2.8. For the very same facts of the case, the complainant also filed his complaint being a private complaint in the Court of the Sessions Judge, Banaskantha at Palanpur on 27.11.1990. The learned Sessions Judge, Banaskantha at Palanpur took a cognizance of an offence and registered that complaint as Sessions Case No. 173 of 1990. The complainant had also produced the list of seized articles at Ex. 2, list of witnesses at Ex. 3 and list of documents at Ex.4 alongwith said private complaint. The concerned Police Station of Deesa (Rural) Police Station produced all the muddamal articles under a list Ex.6 in the Court of the learned Sessions Judge, Banaskantha, Palanpur. #. The learned Judge of the trial Court framed charge Ex. 7 on 21.1.1991 as if the case is filed on the basis of chargesheet filed by the police. Plea of accused at Ex. 8 was recorded, wherein, accused pleaded not guilty to the charge and he claimed to be tried. Thereafter, it was brought to the notice of the learned Sessions Judge that said case was instituted on the basis of a private complaint lodged by the complainant. Hence on 24.7.1991 the learned Judge of the trial Court passed an order Ex.16 treating charge Ex.7 as cancelled. Thereafter, the prosecution examined complainant at Ex. 17. He tendered certain documents during the course of recording of his oral evidence. On the basis of oral evidence of complainant and documentary evidence produced by him, the learned Judge of the trial Court framed charge at Ex. 24 afresh on 24.7.1991. Again plea of accused was recorded below Ex. 23 on 24.7.1991. The accused pleaded not guilty to the charge and he claimed to be tried. #. The prosecution examined following witnesses in support of the case, for which charge has been framed against the accused. (i) PW-1 Shantilal Sukhlal Yadav (complainant) Ex. 17. (ii) PW-2 Nava Kalu (Panch witness) Ex. 36. (iii) PW-3 Dalabhai Narsingbhai Jasalia, (Writer Head Constable, serving in Deesa (Rural) Police Station) Ex. 37. (iv) PW-4 Aabadkhan Gulabkhan Parmar (Police Constable), who carried with him the muddamal articles from Deesa (Rural) Police Station to Sessions Court, Palanpur Ex. 40. (v) PW-5 Police Head Constable Chhotalal Laghuram (who was PSO in Deesa (Rural) Police Station on 06.06.1988) Ex. 45. (vi) PW-6 Dineshwariben Gajanan Barot, (who was PSO in Deesa (Rural) Police Station. She put up accused Kaniram in police lock up) Ex. 51. (vii) PW-7 Shantaprasad Shrigopal Chaudhari. (He took down information received by the District Opium Officer, Neemuch) Ex. 54. (viii) PW-8 Balusinh Kajorsinh Ranavat. (He carried with him the two samples of muddamal articles and handed over to Responsible officer of Laboratory for analysis) Ex. 61. (iv) PW-9 Surendraprasad Kashiprasad Sharma. (He was one of the members of the raiding party) Ex. 63. #. The prosecution also produced following documentary evidence, alogwith other documents in support of their case against the accused :- (i) Complaint Ex. 1 (ii) Panchnama Ex. 10. (iii) Written information given to accused giving grounds of his arrest Ex. 20. (iv) Report of Chemical examiner Ex.21. (v) Copy of entry No.14 dated 06.06.1988 from the station diary of Deesa (Rural) Police Station stating interalia the short summary of complaint Ex. 50. (vi) State of accused Kaniram recorded by complainant on 06.06.1988 which at mark 4/14. #. On completion of oral evidence being recorded, the circumstances appearing against accused were brought to the notice of and explained to accused. In his further statement recorded under Section 313 of the Cr.P.C., the accused has denied practically the entire case of the prosecution. In answer to question No. 15, put to him, he has stated in his further statement that since two to three years, before he was arrested, he was doing the manual labour work in field at Vadaval and that appellant had arrested however to question No. 15, put to him, he has stated in his further statement that since two to three years before he was arrested, he was doing the manual labour work in the village Vadaval and that appellant had arrested him from the field at Vadaval. He also submitted his written statement, which is at Ex. 70. Accused has stated interalia in his written statement at Ex.70 that he is an innocent person. It is further stated that it is false that he was arrested alongwith opium near railway crossing in between village Lorvada and Vadaval. He did not go to the said place alongwith opium. No opium was found from his possession. Since three years before the date of incident, he was doing an agricultural labour work in village Vadaval. He was arrested by an officer of M.P. from the field of village Vadaval. At the time of arrest, he informed his name and name of his village to that officer. He was not arrested by said officer from the place near railway crossing. That officer have not recorded his statement. After arresting him from the field of village Vadaval, he was produced in the Deesa (Rural) Police Station. Thereafter, after hearing the arguments of the learned advocates for both the parties and after analysing and appreciating the oral as well as documentary evidence, the learned Judge of the trial Court came to a conclusion that prosecution has totally ailed to prove the case against the accused and therefore, by rendering his Judgement Exh.79 dated 24.1.1992, he acquitted the accused by giving him benefit of doubt. #. Being aggrieved against and dissatisfied with the said judgment of acquittal, the original complainant has preferred this present appeal as per the provisions of Section 378 of the Cr.P.C. by seeking necessary leave of this Court. #. We have heard Shri Yatin Soni, learned Additional Standing Counsel for the Central Government, who is appearing for the appellant, Shri J.M. Buddhbhatti, learned advocate for the respondent no. 1 and Shri B.Y. Mankad, learned APP for the respondent no. 2 - State of Gujarat. Shri Yatin Soni, learned advocate for the appellant has taken us through oral as well as documentary evidence together with impugned judgement challenged in this appeal. #. Shri Yatin Soni, learned advocate for the appellant has argued that learned Judge of the trial Court has misread the evidence and wrongly come to the conclusion that the prosecution has failed to prove the case against accused. He has argued that on reappreciation of evidence by this court, appeal deserves to be allowed and judgement of acquittal is required to be set aside. He has further argued that looking to the nature and seriousness of the offence, the learned Judge of the trial Court ought to have appreciated the evidence correctly in its proper perspective and he ought to have held that the case is proved against the accused. He has submitted that complainant has proved his case against the accused beyond reasonable doubt and therefore, accused should be convicted with adequate sentence, after allowing this appeal. Shri B.Y. Mankad, learned APP for the respondent no. 2 State has supported the arguments of Shri Yatin Soni. Shri J.M. Buddhbhatti, learned advocate for the appellant no. 1 has supported the judgement of acquittal rendered by learned Judge of the trial Court. He has argued that looking to report of the Chemical Examiner, which is a base for conviction, cannot be admitted in evidence as the Chemical Examiner has not stated the data and result of analysis. He has further argued that mere opinion is not sufficient to accept that report as an admissible evidence. In support of his arguments, he has placed reliance on two cases. (i) MAHMAD HANIF SHAIKH IBRAHIM VS. STATE OF GUJARAT, reported in 1994 (2) GLR XXXV (2) p.1191. and (ii) AMRABHAI RANCHHODBHAI BHARWAD VS. STATE OF GUJARAT, reported in 2001 (2) GLR Vol.XLII (2) p. 1140. Both the decisions are of Division Bench of this Court. ##. On making scrutiny of the impugned judgement, which is challenged in this appeal, it appears that learned judge of the trial Court has acquitted the accused mainly on following four counts. (i) From the evidence of Surendraprasad Kashiprasad Sharma Ex. 63, it appears that representative samples of muddamal articles were packed by wrapping in piece of paper and that piece of paper was kept in empty packet of cigarette and they then wrapped that empty packet of cigarette in a piece of paper. As against this, report of the Chemical Examiner Ex. 21 speaks that representative samples of muddamal articles were found kept in empty match box, which was wrapped in polythene sheet. Considering this a quite contrary evidence for muddamal articles, a reasonable doubt arises and because of that reasonable doubt, accused should be given benefit of doubt. (ii) It is the case of the prosecution that when bag of accused was searched, the total quantity of opium was found to be 8.600 grams. It is the case of the complainant that four representative samples each of 30 grams had been prepared and therefore, if actually opium weighing 120 grams was taken out from that bulk of opium weighing 8.600 grams naturally, the remaining opium be weighing would be 8.480 grams. Now, it is the case of the prosecution that complainant produced opium in packet weighing 8.600 grams in the police station. Thus, variation in the weighing of muddamal articles creates a doubt that samples were taken from some other substance other than, opium weighing 8.600 grams. (iii) The complainant, who carried out the search and seizure was neither an empowered officer nor authorised officer as per Section 41 (2) of the NDPS Act. Complainant is not empowered by the Central Government to act under the provisions of Section 41 (2) of the NDPS Act and therefore, the search and seizure is illegal and same vitiate the trial resulting into acquittal of the accused. (iv) On one side, the complainant lodged his complaint in Deesa (Rural) Police Station by keeping investigation suo-motu, with him and therefore, this is a police case and law requires that P.I. of Deesa (Rural) Police Station ought to have filed chargesheet against accused in the trial Court. As against this legal procedure, the complainant has adopted a curious mode by lodging a private complaint in the trial Court and therefore also, the trial is vitiated. ##. In case of STATE OF GUJARAT VS. SUBAMIYA, reported in 1980 GLR p. 587, certain guiding principles governing the exercise of the High Court's appellate jurisdiction are enunciated. Paragraph 10 of the said judgement reads as under :- " Before we proceed to consider the evidence led by the prosecution, we were very much conscious of the fact, that the decision under challenge was one which had resulted in the acquittal of the accused person. The guiding principles governing the exercise of the High court's appellate jurisdiction are well settled. The Appellate Court, while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded, and to reach a conclusion that upon such evidence, the order of acquittal should be reversed. However, in exercising its powers the appellate Court should give proper weight and consideration to such matters as (i) the views of the trial Court as to the credibility of the witnesses. (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt; and (iv) the slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses which finding would not certainly be disturbed, if two reasonable conclusions can be reached on the basis of the evidence on record." It is also held in case of STATE OF GUJARAT VS. JERUBHAI FULJIBHAI, reported in 1994 (1) GLR p.29, wherein, in paragraph 4 it is held as under :- "Before dealing with the contentions raised by Mr. S.T. Mehta, learned counsel for the State, it is pertinent to bear in mind the basic principles applicable to appeals from orders of acquittal. It is by now a well settled principle of law that the appellate Court should not only be slow and cautious, but must be also reluctant to interfere with the orders of acquittal unless it can be made out that the impugned judgement and order of acquittal is a perversity in law or that the same is based on a gross misappropriation of evidence or is a case of total non-application of mind. It is also required to be borne in mind that when the appellate Court agrees with the general appreciation of evidence as found by the trial Court, no detailed reappreciation of such evidence is required and no elaborate reasoning needs to be given. This principle has been reiterated in the decision of the Supreme Court in case of STATE OF KARNATAKA VS. HEMAREDDY, reported in 1981 SC p.1417 (para 6)." In case of RAMESH BABULAL DOSHI VS. STATE OF GUJARAT, reported in 1997 (1) 38 (1) GLR p. 307 (SC), wherein in para 7, it has been held by the Apex Court as under :- "....... This court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. While sitting in judgement over an acquittal the Appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed." ##. Keeping in mind the above legal principles with regard to an appeal to be dealt with against the judgement by which accused is acquitted, we have considered the submissions made by both the parties in this appeal. ##. For convenience, first we will take a contention taken by Shri Yatin Soni, learned advocate for the appellant that the learned Judge of the trial Court has committed a gross error in arriving at a conclusion that the complainant being Inspector of Narcotics Department was neither empowered or authorised officer under Section 41 (2) of the NDPS Act. He has argued that in view of Section 42 (1), officer of Central Government and officer of State Government can be empowered to take action as stated in Sub-section (1) of Section 42. As per Sub-section (1) of Section 42 of the NDPS Act any such officer being an officer superior in rank to a peon, sepoy or constable of the following departments can be empowered (a) Central Excise (b) Narcotics (c) Customs (d) Revenue Intelligence (e) or any other department of the Central Government or of the Border Security Force. Likewise, any such officer being an officer superior in rank to a peon, sepoy