CR.A/759/2002 1/59 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 759 of 2002 With CRIMINAL APPEAL No. 660 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE 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? ========================================================= MAHAMAD PARVEZKHAN MAHAMAD FARUQKHAN SHAIKH & ANOTHER - Appellants Versus STATE OF GUJARAT – Respondent ========================================================= Appearance in both the appeals: MR IM KAPOOR, for MR RAJESH M AGRAWAL, for the Appellants. MR KT DAVE, ADDITIONAL PUBLIC PROSECUTOR for the Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 13/01/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) 1. Abovenumbered two appeals, filed under Section 374(2) of the Code of Criminal Procedure, 1973, are directed against judgment dated July 26, 2002 rendered by CR.A/759/2002 2/59 JUDGMENT the learned Additional City Sessions Judge, Ahmedabad City in Sessions Case No. 153 of 2001, by which the sole appellant in Criminal Appeal No. 660 of 2002, who was original accused No. 1 as well as two appellants in Criminal Appeal No. 759 of 2002, who were original accused Nos. 2 and 3 in Sessions Case No. 153 of 2001 are convicted for commission of offence punishable under Section 21 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”, for short) and each sentenced to RI for 10 years and fine of Rs. 1,00,000/- (Rupees One Lakh Only), in default RI for 2 years. 2. The facts emerging from the record of the case are as under: Mr. Krishnakumarsinh Chandrakumarsinh Chudasama, who was then Police Inspector, Anti-Terrorist Squad, was on duty in his office in the morning of July 19, 2001. When he was present in his office, his colleague i.e. PI Mr. A.S. Rathod received information from his informant that a person named Rajendra Sharma, who had put on off white coloured full sleeve bush-shirt and coffee coloured pant, was to come with quantity of brown sugar at Gate No. 3 of Civil Hospital, Ahmedabad between 10.30 AM and CR.A/759/2002 3/59 JUDGMENT 1.00 PM along with two persons, out of whom one had tied many coloured cotton string on his wrist as well as put on biscuit coloured shirt and coffee coloured pant whereas another person had worn cream coloured lining shirt and biscuit coloured pant and was of sound physique. It may be mentioned that other particulars about two persons, who were to accompany Rajendra Sharma, were also given in the information. On receipt of information, PI Mr. Chudasama asked Police Constable Motibha to summon panch-witnesses. He and PI Mr. Rathod also informed their immediate official superior i.e. Mr. A.D. Chudasama, who was then the Deputy Superintendent of Police, ATS. PI Mr. Rathod also informed DySP Mr. Chudasama in writing. At about 10.00 AM, Police Constable Motibha came with two persons who were ready to act as panch-witnesses. On interrogation by PI Mr. Chudasama, they disclosed their names to be: (i) Jayesh Babulal Patel; and (ii) Lalitkumar Fulchandbhai Desai. PI Mr. Chudasama ascertained from those persons, who were brought by Police Constable Motibha, whether they were willing to act as panch-witnesses. As the abovenamed two persons, brought by Police Constable Motibha, expressed their desire to act as panch-witnesses, information received by PI Mr. Chudasama from his colleague PI Mr. Rathod was conveyed to them and first part of the CR.A/759/2002 4/59 JUDGMENT panchnama was drawn between 10.00 AM and 10.30 AM wherein information received by PI Mr. Chudasama from PI Mr. Rathod was incorporated. As the contents of secret information received were conveyed to DySP Mr. A.D. Chudasama, Dy SP Mr. Chudasama asked Mr. Rameshbhai Iswharbhai Patel, who was also then one of the Police Inspectors of ATS, Ahmedabad, to come to his chamber. Accordingly, PI Mr. Patel, went to the chamber of DySP Mr. Chudasama. At that time, he found that other officers such as Police Inspector Mr. A.S. Rathod, PSI Mr. P.G. Vaghela, Mr. Shah, Mr. Vyas, Police Constable Motilal, Police Constable Chhatrasinh, etc. were present. DySP Mr. Chudasama conveyed information received to PI Mr. Patel. He was also informed that the services of two persons, who were willing to act as panch-witnesses, were already requisitioned. Necessary material for conducting the raid such as seal, twine, etc. were collected. Before leaving the office for Gate No. 3 of Civil Hospital, Ahmedabad, an entry was made by PI Mr. Rathod in Movement Register maintained at the ATS Office. The members of the raiding party i.e. PI Mr. K. C. Chudasama, PI Mr. A.S. Rathod, PSI Mr. P.G. Vaghela, Police Constables, panch-witnesses, etc. proceeded towards Civil Hospital, Ahmedabad in two different vehicles. The vehicles were halted near Gate No. 1 of Civil Hospital. Thereafter, CR.A/759/2002 5/59 JUDGMENT the members of the raiding party alighted from the vehicles and maintained a watch. The record of the case indicates that the members of the raiding party were also accompanied by informant of PI Mr. Rathod. At about 12.30 Noon, three persons, answering description given in secret information, were sighted near Gate No. 3 of Civil Hospital, which is opposite State Bank of India. They were also pointed out by the informant of PI Mr. Rathod after which the informant left the place. Thereupon, necessary signals were flashed by PI Mr. A.S. Rathod and PI Mr. K.C. Chudasama to PI Mr. RI Patel. Therefore, PI Mr. Patel with other members of the raiding party rushed to Gate No. 3 to apprehend the accused. On seeing PI Mr. Patel and others rushing towards them, the accused made an attempt to abscond which was foiled. PI Mr. Patel and others introduced themselves to the accused and conveyed to the accused that an information was received that they were in possession of brown sugar. One of the accused, who was carrying bag was interrogated. On interrogation, he disclosed his name to be Rajendra Mangilal Sharma, residing at Village: Buda, Taluka: Malhargadh; District: Mandsaur; State of Madhya Pradesh. (He is the sole appellant in Criminal Appeal No. 660 of 2002.) Similarly, another person was interrogated and he disclosed his name to be Mansinh Gordansinh CR.A/759/2002 6/59 JUDGMENT Kachhava of Village: Aradi; Taluka: Malhargadh; District: Mandsaur; State of Madhya Pradesh whereas third person on interrogation disclosed his name to be Mahamad Parvezkhan Mahamad Faruqkhan Shaikh, residing at Village: Buda; Taluka: Malhargadh; District: Mandsaur; State of Madhya Pradesh. The three accused were informed by Mr. Chudasama that in view of the information received that they were in possession of brown sugar, it was necessary to search them and offered the accused to be searched in presence of a Magistrate or a Gazetted Officer, but the said offer was declined by the three accused. The rexine bag, which was carried by accused Rajendra Sharma, who is the sole appellant in Criminal Appeal No. 660 of 2002, was opened and it was found that it was containing 5 packets. It was also found that the 5 packets in turn were containing brown coloured powder. It may be mentioned that the incident in question took place in the month of July and as it was likely to rain, the accused and others were taken to ATS Office, Ahmedabad. At the ATS Office, the bag carried by original accused No. 1, Rajendra Sharma was searched and the search resulted into find of 5 packets. On interrogation, original accused No. 1 stated before the Police Officers that the powder placed in the packets was brown sugar. However, it was necessary to ascertain prima facie the nature of the CR.A/759/2002 7/59 JUDGMENT powder which was placed in plastic-bags and, therefore, PSI Mr. Rane was sent with a yadi to the office of Forensic Science Laboratory (FSL) to requisition services of one of the officers of FSL. Meanwhile, Police Constable Chhatrasinh was sent to summon a person with scales and weights to weigh the substance found from the possession of accused Rajendra Mangilal Sharma. The person of Rajendra Mangilal Sharma was searched, which resulted into find of Rs. 160/-. A letter was also found from pocket of Mr. Sharma wherein a mobile number was noted down. The search of person of accused No. 2 Mansinh Gordansinh Kachhva resulted into find of cash of Rs. 130 and two letters wherein telephone number, mobile number, addresses, etc were written in Hindi language. The search of person of accused No. 3 Mahamad Parvezkhan resulted into find of black coloured telephone diary and two visiting cards. Police Constable Chhatrasingh secured services of Mr. Jignesh Patel to weigh the substance found from possession of Mr. Sharma. The net weight of brown sugar found from possession was ascertained to be 1837 Grams and 700 Milligrams. Meanwhile, PSI Mr. Rane could secure the services of Mr. G.D. Sharma, who was one of the Scientific Officers discharging duties in FSL, Ahmedabad. Mr. G.D. Sharma conducted preliminary tests by taking out 5 Grams of CR.A/759/2002 8/59 JUDGMENT brown sugar from each packet and opined that the substance analysed was brown sugar. Thereafter, from each packet two samples, each of 5 Grams of brown sugar were taken and placed in a plastic-tin. Thus, in all, 10 samples were taken and marked as A1, A2, etc. After closing the plastic-tin with its lid, each tin was wrapped in paper. The sample so wrapped was further wrapped with cloth, which was stitched and marked. Thereafter, slip bearing signatures of PI Mr. Chudasama, PI Mr. Rathod and panch-witnesses were placed on each sample and tied with twine after which seal, bearing impression of “Spl IGP (Ops), G.S., Ahmedabad”, was applied. On demand, none of the accused could produce pass or permit authorising him to possess the brown sugar. Therefore, they were arrested and drawing of second part of panchnama was completed. PI Mr. R.I. Patel lodged his complaint before PI Mr. K. C. Chudasama. PI Mr. Chudasama forwarded the complaint of PI Mr. Patel, panchnama, muddamal, the three accused, etc. to Police Station Officer of Shahibaug Police Station. On the basis of complaint of PI Mr. Patel, offences were registered against the accused. Initially, the muddamal was kept in safe custody by PSO of the Police Station i.e. Jivabhai Pethabhai himself and subsequently, it was handed-over for safe-custody to Crime Writer Head CR.A/759/2002 9/59 JUDGMENT Constable Popatji Hemtuji at 20-30 Hrs. Crime Writer Head Constable Popatji handed-over the muddamal to Police Constable Chhatrasinh Manubha to deliver the same to FSL for analysis. Accordingly, samples were handed-over by Police Constable Chattrasinh Manubha to FSL for analysis. The complaint lodged by PI Mr. Patel was handed-over by Police Station Officer of Shahibaug Police Station to PI Mr. P.G. Vaghela for investigation. Investigating Officer PI Mr. P. J. Vaghela recorded statements of those persons who were found to be conversant with the facts of the case. Muddamal was analysed by FSL and its report indicated that the substance analysed was brown sugar withing the meaning of the Act. On completion of investigation, the three accused and two others, namely, Khumansinh Kesarsinh and Sumersinh were chargesheeted in the Court of the learned Special Judge on September 5, 2001. It may be mentioned that in the chargesheet, the two accused i.e. (i) Khumansinh Kesarsinh; and (ii) Sumersinh were shown as “absconding”. 3. The learned Additional Sessions Judge, Court No. 15, to whom the case was made over for trial, framed necessary charge against the three accused at Exh. 10. It was read-over and explained to them. They pleaded not guilty to the same and claimed to be tried. The CR.A/759/2002 10/59 JUDGMENT prosecution, therefore, examined: (i) complainant PI Mr. Rameshbhai Iswarbhai Patel as PW 1, at Exh. 20; (ii) panch Lalitkumar Fulchandbhai Desai as PW 2, at Exh. 23; (iii) the then Police Station officer of Shahibaug Police Station Mr. Jivabhai Pethabhai as PW 3, at Exh. 48; (iv) Police Constable Popatji Hemtuji as PW 4, at Exh. 51; (v) Goldsmith, who weighed the substance i.e. Mr. Jignesh Ambalal Patel as PW 5, at Exh. 53; (vi) Police Inspector, ATS, Mr. Krishnakumarsinh Chandrakumarsinh Chudasama as PW 6, at Exh. 55; (viii) Police Constable, who carried muddamal to FSL i.e. Chhatrasinh Manuba Chudasama as PW 7, at Exh. 58; and (ix) Investigating Officer Mr. Pravinsinh Gattorsinh Vaghela as PW 8, at Exh. 62, to prove its case against the three accused. The prosecution also produced documentary evidence, such as: (i) complaint lodged by PI Mr. RI Patel, at Exh. 21; (ii) Government Resolution creating ATS in Gujarat State, at Exh. 22; (iii) Resolution prepared under Section 42 of the Act, at Exh. 24; (iv) Resolution indicating compliance of provisions of Section 50 of the Act, at Exh. 25; (v) panchnama of search of bag carried by accused Rajendra Sharma which resulted in find and seizure of brown sugar weighing 1837 Grams and 700 Milligrams as well as articles found during search of person of the accused, at Exh. 26; (vi) entry from Police CR.A/759/2002 11/59 JUDGMENT Station Diary indicating that brown sugar was seized, at Exh. 49; (viii) forwarding letter addressed by PI ATS to PSO Shahibaug Police Station with which muddamal, panchnama, complaint, etc. were handed-over to PSO, at Exh. 50; (viii) entry from Anamati Register, at Exh. 52; (ix) report indicating that substance seized was analysed at the Police Station by Scientific Officer of FSL and found to be brown sugar, at Exh. 57; (x) entry made in the Movement Register indicating that information received was reduced into writing, at Exh. 63; (xi) report of analysis conducted by FSL, at Exh. 74 and (xiii) report by PI to Dy. I.G.P. made under Section 57, at Exh. 65, etc. in support of its case against the three appellants. 4. After recording of evidence of prosecution witnesses was over, the learned Special Judge explained to the appellants circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements, as required by Section 313 of the Code of Criminal Procedure, 1973. In his further statement, the sole appellant in Criminal Appeal No. 660 of 2002 i.e. Rajendra Sharma claimed that he was arrested at 8.00 A.M., but nothing incriminating was found from him and a false case was foisted upon him whereas accused CR.A/759/2002 12/59 JUDGMENT No. 2 i.e. Mahamad Parvezkhan Mahamad Faruqkhan Shaikh stated in his further statement that he would prefer to state his defence in his written statement, which should be permitted to be filed, and original accused No. 3 mentioned in his further statement that he should also be permitted to file the written statement. It may be stated that only original accused No. 3 filed his written statement. In the said written statement, it was claimed by original accused No. 3 that his maternal aunt i.e. Kanchanben was admitted as an indoor patient for her treatment in Civil Hospital and when her X-ray was to be taken, he was arrested, but he had not come to Ahmedabad for disposal of quantity of brown sugar and was falsely involved in the case. It is relevant to notice that no defence evidence was adduced by any of the accused. 5. On appreciation of evidence led by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that original accused No. 1 was found in possession of brown sugar weighing 1837 Grams and 700 Milligrams whereas original accused Nos. 2 and 3 were present with accused No. 1 when the said muddamal was recovered from original accused No. 1 and, therefore, commission of offence by the accused punishable under Section 21 read with Section 29 of the CR.A/759/2002 13/59 JUDGMENT Act was established. The learned Judge scrutinised the testimony of PI Mr. Rajendrabhai Patel and held that it was proved that provisions of Sections 42 and 50 of the Act were complied with. The learned Judge negatived the contention raised by the defence that conduct of PI Mr. Patel was unnatural inasmuch as he had apprehended the three accused before brown sugar could be delivered to others and held that conduct of none of the Police Officers was unusual or unnatural inasmuch as it was the duty of the Police Officer to apprehend the person who was found to be in possession of psychotropic substance. The learned Judge did not accept the argument advanced by the defence that an adverse inference should be drawn against the prosecution for non-examination of PI Mr. Rathod by holding that the accused were caught red handed with muddamal brown sugar and non-examination of PI Mr. Rathod was inconsequential. The learned Judge noticed that panch Lalitkumar was an independent witness who fully supported the case of the prosecution and, therefore, the evidence of Police Officers was worthy of acceptance. The learned Judge further held that all the three accused had travelled together and came to Ahmedabad for special reason, as a result of which they were liable to be convicted for commission of offence punishable under Section 21 read with Section 29 of the CR.A/759/2002 14/59 JUDGMENT Act. In view of abovereferredto conclusions, the learned Judge has convicted the three appellants for commission of offence punishable under Section 21 read with Section 29 of the Act and imposed sentences referred to earlier by judgment dated July 26, 2002, giving rise to abovenumbered appeals. 6. Mr. I. M. Kapoor, learned Counsel appearing for Mr. R. M. Agrawal, learned Counsel of the appellants, contended that the best evidence in the case, to establish that PI Mr. Rathod had reduced into writing the information received by him, as required by Section 41(2) of the Act, is not produced by the prosecution in this case and, therefore, the whole prosecution case should be disbelieved by the Court. Elaborating the contention, it was argued that PI Mr. Rathod was the Police Officer who received the information and not only he is alleged to have entered the information into the Movement Register but was present all throughout during the raid and, therefore, he should have been examined to prove compliance of Section 41(2) of the Act. According to Mr. Kapoor, for not examining PI Mr. Rathod, an adverse inference should be drawn against the prosecution and the case of the prosecution against the appellants should be disbelieved. According to the learned Counsel of the CR.A/759/2002 15/59 JUDGMENT appellants, the evidence on record clinchingly establishes that an unknown person had identified the accused but neither the said unknown person is examined nor PI Mr. Rathod is examined and, therefore, hearsay evidence of other Police Officers tendered to establish compliance of Section 41(2) of the Act should not be acted upon by the Court. The learned Counsel further contended that even panchnama was drawn in presence of PI Mr. Rathod, which was signed by him also, but the testimony of Investigating Officer Mr. Vaghela indicates that he had neither recorded police statement of PI Mr. Chudasama or that of PI Mr. Rathod and, therefore, the prosecution case should be disbelieved, when it is not established that provisions of Section 41(2) were complied with by PI Mr. Rathod. According to the learned Counsel of the appellants, as per the information received, the appellants were to deliver brown sugar at Gate No. 3 of Civil Hospital and that they were apprehended with brown sugar, near Gate No. 3 of Civil Hospital, Ahmedabad, but PI Mr. Rathod has stated that delivery of brown sugar was to take place at Gate No. 1 of Civil Hospital, Ahmedabad whereas panch Lalitkumar has stated that accused were apprehended when they were near Gate No. 1 and as the place of incident is not proved satisfactorily, the prosecution case that the accused CR.A/759/2002 16/59 JUDGMENT were arrested near Gate No. 3 should be disbelieved. The learned Counsel of the appellants maintained that there are several discrepancies in the evidence adduced by the prosecution such as: (i) the complainant i.e. PI Mr. Patel states that State Bank of India was situated opposite Gate No. 3 whereas panch Lalitkumar says that State Bank of India was situated opposite Gate No. 1; (ii) the complainant says that the bag carried by original accused No. 1 was opened at the spot and it was found that it was containing 5 packets whereas panch- witness says that bag was for the first time opened at the office of ATS; (iii) the complainant has maintained that complete panchnama was written down on the spot but in cross, he has admitted that panchnama was not drawn completely at the gate and part was written at the office; (iv) though complete panchnama was not drawn near Gate No. 3 of Civil Hospital, the signatures of panch- witnesses were not obtained on incomplete panchnama; (v) the Police Officers examined in the case have stated that five tests were carried out by Scientific Officer of FSL to prima facie ascertain whether the substance found was brown sugar whereas the panch-witness says that only one sample was taken out from one packet and only one test was conducted; (vi) panch-witness Lalitkumar says that three packets were found from bag carried by the original CR.A/759/2002 17/59 JUDGMENT accused No. 3 and samples of 10 Grams were taken from each packet whereas other witnesses have maintained before the Court that sample of 5 Grams was taken from five packets; (vii) panch-witness has not described the seal applied on the samples in detail and has merely stated that the samples were sealed whereas in his cross, he has stated that the seal was applied on each plastic- tin but does not say as to on which part of the sample, the seal was applied;(viii) the complainant has stated in his testimony that one seal was applied on each tin but he has not stated that slips were pasted on the tins whereas PI Mr. Chudasama has stated that one seal was applied on slips bearing signatures of panch-witnesses and two samples were wrapped in clothes; (ix) neither in panchnama nor in the complaint it is mentioned as to whether the seal was applied, etc. - and in view of these discrepancies, the prosecution case becomes highly doubtful. It was argued that original muddamal receipt is not produced before the Court whereas testimony of witness Jivabhai does not indicate that along with muddamal packets, he was also handed-over documents indicating compliance of Section 50, whereas witness Popatji, who was handed over muddamal for safe custody, in his testimony has stated that there were no slips on packets, but PSO Jivabhai, who was initially handed over CR.A/759/2002 18/59 JUDGMENT muddamal, has stated that there were slips on packets, and in view of absence of evidence indicating as to who brought back samples from FSL, it should be held that record of muddamal was not properly maintained and the appellants are entitled to reasonable benefit of doubt arising from the facts of the case. The learned Counsel contended that the note below Exh. 52 indicates that except muddamal bottles, other articles were destroyed by the investigating agency pursuant to order of learned Magistrate dated August 28, 2001 regarding which Station Diary Entry No. 26 of 2001 was made on September 5, 2001 and, therefore, muddamal could not have been produced before the Court as indicated in Exh. 17, as a result of which the appellants are entitled to acquittal when it is not satisfactorily proved that what was produced before the Court were packets of contraband items seized from the possession of the original accused No. 1. The learned Counsel has asserted that panch-witness in his testimony before the Court has maintained that the samples were sealed and one seal was applied on each plastic-tin