IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 833 of 1989 with CRIMINAL APPEAL No 835 of 1989 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE M.S.SHAH ============================================================ 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? -------------------------------------------------------------- STATE OF GUJARAT Versus ALAMKHAN MAHMADKHAN PATHAN -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 833 of 1989 MR KC SHAH, APP, for Petitioner No. 1 MR JM PANCHAL for Respondent No. 1 2. Criminal Appeal No. 835 of 1989 MR KC SHAH, APP, for Petitioner No. 1 MS SADHANA SAGAR for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE M.S.SHAH Date of decision: 01/09/2003 COMMON ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.K.TRIVEDI) 1. The appellant-State of Gujarat has challenged the common judgment and order of acquittal recorded by the learned Additional City Sessions Judge, Ahmedabad City dated 31.8.1989 acquitting the respondent-accused from the offence under Section 20(B)(2) of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as "the NDPS Act") and under Section 66(1)(B) of the Bombay Prohibition Act while disposing of Sessions Case No.13 of 1989 by preferring appeal being Criminal Appeal No.833 of 1989, and appeal being Criminal Appeal No. 835 of 1989 challenging the judgment and order passed by the same Court on the same day acquitting the accused- Ayubkhan Mahmadkhan Pathan from the said offence while disposing of Sessions Case No.41 of 1989. As the learned trial Judge had disposed of both the Sessions cases by his common judgment and order, we propose to dispose of both these appeals by this common judgment. 2. We have heard Mr KC Shah, learned Additional Public Prosecutor at length who in turn while arguing the case has taken us through oral as well as documentary evidence led by the prosecution during the trial of the case before the trial Court as well as the judgment under challenge. It is the contention of Mr Shah that in light of the evidence led by the prosecution, the learned trial Judge was not justified in acquitting the accused and the learned trial Judge has not properly appreciated the evidence led by the prosecution, which has resulted into miscarriage of justice. It is also the contention of Mr Shah that as found from the evidence, Shri Parmar who was the Designated Officer as contemplated under the provisions of the NDPS Act and as found from his evidence, the prosecution has established that during the raid carried out at the premises of the respondent-accused, a large quantity of narcotic substance was found and recovered and as per the FSL report, the said substance which was seized from the accused established that the said substance is a narcotic substance and the learned trial Judge ought to have accepted the evidence of the prosecution and ought to have recorded the order of conviction convicting the accused. 3. Mr Panchal, learned advocate appearing for the respondent-accused has supported the judgment under challenge recorded by the learned trial Judge acquitting the accused and according to Mr Panchal as per the admission made by the raiding officer Shri Parmar PW 1 as well as Shri Dharampal Bangia PW 10 who in term has admitted that no information was written down by Shri Parmar when he received the secret information from the informant and PW 10 Shri Bangia has further admitted that during his investigation he has not come across any document on which the information was written down by officer Shri Parmar in respect of the narcotic substance. Mr Panchal has also vehemently urged that there is no compliance of mandatory provisions of Section 42 of NDPS Act. Mr Panchal next urged that this being an acquittal appeal when the learned trial Judge has after appreciating the evidence led before him has recorded a finding by not accepting the prosecution case and order of acquittal is recorded, according to him, this Court will be slow in interfering with the order of acquittal recorded by the learned trial Judge based on appreciation of evidence. Mr Panchal has also next urged that when the learned trial Judge has on appreciating the evidence held that the prosecution has failed to establish with regard to the ownership of the property from where the substance was seized by Shri Parmar and the member of the raiding party and when the prosecution has failed to prove the possession in respect of the narcotic substance and when the learned trial Judge has accordingly held against the prosecution, this Court will not upset the finding by reversing the order of acquittal into conviction and he prayed that the appeals filed by the State be dismissed. 4. As found from the record, it is the prosecution case that Shri Natversinh Parmar, Police Inspector, Crime Branch had received the secret information from the informant on 1.4.1988, and as per the information, after following the required steps as contemplated under the NDPS Act, he carried out the raid in presence of panchas and the raiding party had seized 9 kgs. of charas, and the substance which was seized was sent for analysis before the Forensic Science Laboratory, and as per the report of the FSL, the substance examined was found to be a narcotic substance. As found from the charge that on 1.4.1988 between 12.15 to 14.15 hours at the residential premises of the accused in Khajuri Pole, Baluchawad, Kalupur, Ahmedabad, the accused were in possession of 9 kgs. of narcotic substance, namely, charas without pass or permit or licence, and thereby, the accused have committed offence under Section 20(B)(2) of the NDPS Act and the offence under Section 66(1)(B) of the Bombay Prohibition Act. 5. As found from the evidence of PW 1 Shri Natversinh Parmar who was at the relevant time working as Police Inspector in Crime Branch i.e. on 1.4.1988 at the DCB office at 12 noon. He received a secret information from his informant that Alamkhan Mahmadkhan Pathan, respondent in Criminal Appeal No.833 of 1989, and Ayubkhan Mahmadkhan Pathan, respondent in connected Criminal Appeal No.835 of 1989, are doing business of sale of narcotic substance, namely, charas by keeping the narcotic substance in their possession in their residential premises, which is in their possession. On getting this secret information, he made arrangement for calling two panchas and after explaining both the panchas about the information who in term had agreed to remain and act as panchas. Thereafter, a preliminary panchnama was drawn. In the said preliminary panchnama, both the panchas and Mr Parmar had put their signature. After drawing the preliminary panchnama, he along with the two panchas and other police personnels, namely, Shri KK Patel, Police Superintendent, Shri DB Bangia, Police Sub-Inspector, Shri BK Jadeja, Police Sub-Inspector, Shri KD Pandya and other staff members had in a Government vehicle proceeded towards the place of information through Khamasa gate, Astodia darwaja, Sarangpur circle, Kalupur circle, Prem darwaja and Vaghriwad and reached at the corner of Khajuri Pole at Baluchawad. There they had parked their vehicles and by foot had gone to Khajuri pole. By climbing the ladder they had come on the second floor of the building, and on seeing them, accused Alamkhan Mahmadkhan Pathan came out from the middle room and ran away by jumping from the roof of the house. The police personnel chased him but he could not be apprehended. On seeing the room from which the accused Alamkhan had ran away, it was found that there was one iron cupboard on the left side of the room towards the wall on the eastern side and another cupboard towards the wall on the southern side. On checking, nothing was found from the room. The iron cupboard was found to be locked and the keys for the same were not found and by using force the iron cupboard was opened from which one bag was found. On opening the said bag, there was one paper written in Urdu language. On opening the paper, one plastic bag was found and on opening the said bag, 39 round balls of charas of different size were found. The said substance was smelt by Shri Parmar as well as by the panchas and it was confirmed that the said substance was charas. From the said round balls of charas, samples were taken out and the same were wrapped in a plastic paper, which was also further wrapped. The signed slips of panchas with the seal of DCB was applied. The remaining round balls of charas were packed in a plastic bag. The said plastic bag was covered with the urdu paper and thereafter it was also wrapped with a wrapper. The sheets signed by Mr Parmar and the other panchas and seal of Police Inspector, DCB was applied. Shri Parmar has also deposed that a panchnama to that effect was drawn in presence of panchas which was signed by him as well as by the two panchas. Thereafter, he filed a complaint against the accused on behalf of the State. That was written down by his writer constable. The panchnama was prepared at the place where the narcotic substance was found, and the complaint was given and written at the police station. Through his evidence, he has proved the complaint as well as the report submitted by him which are at Exh.16 and Exh.17. As found from his evidence, one muddamal box was shown to him which was in sealed condition and the said seal was not readable. The witness in his examination-in-chief has deposed that the muddamal, which was seized and sent to FSL and shown to him in the Court, was not sent in the box from which it was taken out. According to him, the muddamal which was seized and on which slips signed by the panchas as well as by him with the seal of Police Inspector, DCB Crime, was sent for analysis. He had not sent the muddamal in the box shown to him and he had not applied the seal on the said box. The remaining muddamal which was kept and preserved and wrapped with the wrapper with the slips signed by the panchas was handed over by him to the PSO and he also handed over the sample which was seized to the PSO. In the Court, Mr Parmar has also identified the muddamal which was seized by him and also identified the keys which was seized. As the cupboard was locked, the same was opened by applying force by using iron pipes. Shri Parmar has also identified both the accused present in the Court. While identifying accused Alamkhan, witness Shri Parmar has deposed that he knows the accused because earlier he had arrested accused Alamkhan in connection with the offence under Section 302 of IPC, which was registered at Kalupur Police Station vide CR No.166 of 1985. In the cross-examination, PW 1 Shri Parmar has deposed that the offence which was registered at Kalupur Police Station under CR No. 166 of 1985 was in respect of murder of PSI Rana, and during the investigation of the said case, the accused absconded and subsequently after his arrest, supplementary chargesheet was filed. The said accused Alamkhan was arrested under transfer warrant and not from his residential place. He has further deposed that he had not kept the informant present while carrying out the raid, and the informant had not given the number of the house of accused-Alamkhan Pathan. The witness in term has deposed that he has not even tried to find out the house number of accused Alamkhan Mahmadkhan Pathan from the record of the Police Station nor he had tried to enquire about the topography of the residence of the accused, as according to the witness Mr Parmar, he was knowing the house of accused No.1. The house at which the raid was carried out was seen by him earlier during the inquiry of the offence which was registered under CR No.166 of 1985 and whenever he visited the house of the accused for inquiry, the same was found to be locked. The neighbours of the house of the accused were also not knowing him as P.I. Crime Branch and he had also not made any inquiry from the neighbours of the accused when the house of the accused was found locked. The witness had admitted that another house of the accused is also situate in the same pole and there he resides with all his family members. The said another house of the accused Alamkhan is at a distance of 25 to 30 steps and on the day of the raid i.e. on 1.4.1988, they also carried out search of the second house of the accused in presence of the panchas. According to the witness that house was searched after about ten minutes of completing the panchnama in the first house and the search had taken place for about 10 to 15 minutes. At the time of the search that house was found opened and no one was present. In the cross-examination, Shri Parmar has also admitted that the house at which the raid was carried out and from where the muddamal was seized has no number. Mr Parmar has also admitted that the information which he received from the informant was not recorded in writing. The witness was also cross-examined at length by the defence in respect of the case put forward by the witness as well as the prosecution that at the time when the raiding party had entered the house, as per the information of the informant, by climbing the ladder, from the middle room the accused ran away by jumping from the roofs of the other nearby houses. The witness could not remember the height from which the accused jumped on seeing the members of the raiding party. It is also found from the cross-examination that police personnel who had ran towards the accused-Alamkhan had informed him that the accused could not be traced and he has admitted that in his FIR he has not disclosed the names of the two police personnel who chased to apprehend the accused. In the cross-examination, the witness has further deposed that he was the first person to enter in the room and along with him two panchas were there and Shri Patel was near the gallery. He has admitted that when Alamkhan ran away from his house, at that time, all the police personnel had come upstairs. He has not noted down the damage caused to the cupboard in the panchnama while opening the said cupboard. He has also admitted that he has the authority to seize the cupboard from which the charas was found. Further he has admitted that he believes that if the keys of the cupboard could be found then the person who was using the cupboard can be found out. He has admitted that he has not seized the cupboard as according to him, it was not necessary for him to seize the cupboard. After the raid was over, they had not locked or sealed the room nor they had posted any police personnel there and they just closed the door from outside. In respect of drawing panchnama, the witness has in term deposed that they had completed the panchnama at 14.15 hours and they had started the panchnama of the other house of the accused i.e. Ex.19 at 14.25 hours and during the period between 14.15 to 14.25, he could not say what he had done. After coming out from the room which was raided, he had not gone in the said room again. He could not also say that at what time he handed over the muddamal to PSO. According to the witness, in the FIR as well as in the panchnama he had applied the seal of "Inspector of Police, Crime Branch, Ahmedabad City" and in their police station, there is no separate seal of "PI, DCB, Ahmedabad City". Regarding panchas to the raid, he has denied that the two panchas were not the residents of Ahmedabad as both the panchas are residing in Shahawadi, and from the place of incident, Shahawadi is about 10 to 12 kms. away. He deputed a constable for securing the presence of two panchas. He has denied that these panchas are known to him and shall depose as per his say, therefore, he has taken their services to act as panchas. It is further found from the cross-examination on behalf of accused No.2 that in the murder case of PSI, Rana a supplementary chargesheet was filed against accused-Alamkhan and as he had filed the chargesheet against Alamkhan his name was shown as one of the witnesses in the said case. He could not remember that when the supplementary chargesheet was filed against the accused whether the main accused were acquitted by the Court or not. He has further admitted that in the murder case of PSI Rana, accused-Alamkhan was acquitted. Alamkhan was under police remand between 10.11.1987 and 15.11.1987 and thereafter he was sent in judicial custody. He could not remember that while the accused was in jail the accused was detained under the provisions of National Security Act. He could also not remember that whether the said detenu was released from detention by the Advisory Board. The premises at which they had carried out raid which is situate in Khajuri pole, Baluchawad is within the jurisdiction of Kalupur Police Station. Kalupur Police Station is situate on Relief Road, Opp. Dhanasuthar-ni-pole, and from Kalupur Police Station, the place of incident is at a distance of 1 km. while the Crime Branch Police Station is at a distance of 4 kms.. The witness has further deposed that the FIR in the present case could have been given in the Kalupur Police Station. The muddamal which was kept in big brown cover and from which the samples were taken was not sent to the FSL. Shri Parmar who is the complainant, PW 1, has proved the complaint which was filed by him against the accused on 1.4.1988. The report Ex.17 addressed to the PSO of Crime Branch, Ahmedabad is also proved. Ex.19 is the panchnama in respect of the other house of the accused. Search in presence of two panchas Laxmansingh Motisingh and Jayantibhai Surabhai Bharwad on 1.4.1988 between 14.25 to 14.45 hours. 6. Shri Jamnadas Kanjibhai Vaishnani PW 2 was at the relevant time working as a Senior Scientific Assistant cum Assistant chemical Analyser with the Forensic Science Laboratory, Ahmedabad. On 18.4.1988, the muddamal from DCB Police Station under CR No.7/88 was received and accepted in their office for chemical analysis and the acknowledgment receipt was issued by Shri JM Vyas, Assistant Director, which is proved at Ex.21. PW 2 Shri Vaishnani has examined the said muddamal substance on 21.11.1988 and he was assisted by Shri RK Solanki who was working as a Junior Scientific Assistant. The muddamal were in sealed packet but the seals were not legible. On the paper of the packet there wa a seal of police station with CR number. On opening the packet, below the seal, one slip was found having signatures of Laxmansingh Motisingh and Bharwad Jayantibhai. Inside the plastic bag, 37 blackish and brownish substances were found and the net weight of all the substances was found to be 48 kgs. He examined the substances from different chemical methods and with Thin layer chromatography pattern. He has also carried out Para Amino Phenol test and the result was positive. After the substances were examined chemically, the same were sent to the Biological department for botanical test. All the 37 pieces were found to be charas. Smt. AD Nandi has also submitted her report which was done in the Department of Biology and the same is proved at Ex.23. The biological report was received by him on 11.1.1989. On 19.1.1989 his report and the biological report were sent to the Police Inspector, DCB, Ahmedabad. According to the witness, for chemical analysis as well as for botanical analysis, they require minimum 1 gm. of substance, and if he is given is 0.2 mgm. then from that also he can say that the substance is charas. In the cross-examination, he has admitted that he is a Science Graduate with B.Sc. Chemistry and in the said course, there is no syllabus or any information regarding charas and during his study in B.Sc., in his syllabus, there is no subject regarding analysis of charas. He has further admitted that he has not been authorised to examine or analyse the samples which were seized under the provisions of Drugs & Cosmetics Act. He has admitted that special instruments are required for processing and analysing drug samples. He has not been given any training by the Government for analysing the substance charas. He has not even taken any training in Government Drug Laboratory where the training is given for analysing the substance charas and he has not examined any substance which are covered under the Drugs & Cosmetics Act. The witness has denied the suggestion that it is not true to say that if the substance is sent less than half a gram then one cannot analyse the said substance and he has denied that if the police sent muddamal substance of weight between 2 gm. to 5 gm. then he cannot analyse the same. He has admitted that while giving deposition in Sessions Case No.16 of 1989 in his deposition he had deposed that they cannot analyse the substance if sample for analysis sent by the police is of weight less than half a gram. He has examined all the 37 samples differently and in his work-sheet statement he has not stated that how many samples of substance were analysed by him. For examining 37 samples, he has 37 times tested the substance personally and Mr Solanki was assisting him by giving some instruments. He has not mentioned in the worksheet about the analysis that he carried out from 21.11.1988 and thereafter. However, according to the witness, he completed the analysis of all the 37 samples within four to five days. Ex.24 the analysis report was written by him and the witness has admitted that the results of the Duquenois/Levine test, Beam's Alkali test and P-Amino Phenol test are in the handwriting of Shri Solanki. In the cross-examination, it is further found that the witness has admitted that when he gave his opinion that the substance is charas, he did not mention the percentage of cannabis sativa and resin. In Ex.24 report of FSL, Ahmedabad, in the description column of sample, it is mentioned that inside one sealed cover packet, there wa one plastic paper under which 37 blackish and brownish substances were found, and in all 37 samples, charas was found having total weight of 48 gms.. As per the FSL report and the result of the examination, the contents of all the 37 samples have been found to be of charas. 7. From the deposition of PW 3 Laxmanji Motiji Thakore, it is found that on 1.4.1988 at about 12 noon, while he was going to Bazaar on the way towards Haveli, one police constable asked him that whether he is prepared to act as a pancha and the witness said "yes" and he along with the police constable had gone to Haveli Police Station where he met PSI Parmar. In the police station, other police officers were also present. He was told that they have to go for carrying out raid at Baluchawad. As he had agreed to remain and act as