CR.A/320/2002 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 320 of 2002 With CRIMINAL MISC.APPLICATION No. 2941 of 2002 In CRIMINAL APPEAL No. 320 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= FAIZ MAHMAD SAKURAKHA QURESHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1 MR NK MAJMUDAR for Appellant(s) : 1, MR HL JANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA CR.A/320/2002 2/19 JUDGMENT and HONOURABLE MR.JUSTICE KS JHAVERI Date : 31/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.This appeal is directed against the judgment and order of conviction and sentence dated 25-1-2002 delivered by the learned 2nd Extra Assistant Judge and Special Judge, Bharuch, in Special NDPS Case No.11 of 1998 whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs.1,00,000/- (Rupees One Lakh only), in default, to undergo rigorous imprisonment for a further period of two years for the offence under Sec.8(c) with Sec.18 of the Narcotic Drugs and Psychotropic Substances Act ('the Act' for Short) and also to undergo rigorous imprisonment for 12 years with a fine of Rs.1,00,000/- (Rupees One Lakh only), in default, to undergo rigorous imprisonment for a further period of two years for the offence under Sec.21 of CR.A/320/2002 3/19 JUDGMENT the Act. Both the sentences were ordered to run concurrently. 2.The case of the prosecution in short is that when PSO, Narcotic Cell, Bharuch, was in his Police Station on 2-8-1998, he received a secret information that a person possessing some narcotic substance would pass near Palej four cross roads. He therefore reduced the same in writing and informed his Superior Officer. He called two panchas who were informed of the secret information. He then drew primary panchnama there itself. Thereafter, he, his Superior Officer, informant, police personnel and panchas proceeded towards the place where the accused was about to pass. When they reached very near to Star Hotel on National Highway No.8, they stood very near to Jakat Naka Cabin. At about 2.30 p.m. when a person was coming towards Palej, the informant identified him as the said person and accordingly told to one Mr.Pandya of Narcotic Cell. Mr.Pandya stopped him and introduced himself and other CR.A/320/2002 4/19 JUDGMENT persons to the said person. He then informed him that they had an information regarding narcotic substance being possessed by him and, therefore, they would like to search him. He was asked whether he wanted the search to be carried out in presence of a Gazetted Officer or an Executive Magistrate, he however refused for the same. Therefore, his search was started. When his pocket was searched, Indian national currency was found which was given back to him. In another packet, a paper indicating his place of stay was found. On further search, one more plastic bag was found in which they found some brown colour substance of uneven shape and on smelling the same, they felt it to be some narcotic substance opium and, therefore, he made arrangements to call a weighing person and a photographer for taking photographs of search and seizure procedure. On arrival of weighing person, opium was weighed and was found to be weighing 2 kg. 100 gms. Two samples of 50 gm. each were CR.A/320/2002 5/19 JUDGMENT taken and sealed in separate packets and rest of the muddamal was also sealed in presence of panchas, accused and other police personnel and panch slip and seal of Narcotic Cell were applied. By that process, panchnama of search and seizure was completed and it was signed by panchas and police personnel. Thereafter, complaint has been filed by Mr.Pandya on behalf of the State and sent the same for registration along with the report of concerned Police Officer, panchnama, muddamal and accused. On receiving the same, PSO registered the same as Palej Police Station C.R.No.48 of 1998 for the offence under Secs.8(c), 18 and 21 of the Act and further investigation was started by the I.O. I.O. then made arrangements to send the muddamal to FSL with muddamal samples and on receiving the FSL report, it was kept with the investigation papers. He also recorded the statements of various witnesses, collected the photograph, negatives and bills from the photographer and also investigated CR.A/320/2002 6/19 JUDGMENT further into the matter and at the end of investigation submitted the charge sheet into the Sessions Court. On receiving the same, it has been numbered as Special NDPS Case No.11 of 1998 and sent to the Court of learned Addl. Sessions Judge, Bharuch for disposal on merits. On production of the accused, learned Addl. Sessions Judge framed charge against the accused. The accused denied the said charge and prayed for trial. 3.To prove the guilt against the accused, prosecution examined 16 witnesses and has produced and relied upon documentary evidence numbering 15. 4.On submission of closing pursis by the prosecution, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure qua incriminating evidence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge delivered the impugned judgment convicting CR.A/320/2002 7/19 JUDGMENT the appellant as aforesaid in the earlier part of this judgment giving rise to prefer the present appeal. 5.Heard learned counsel for the appellant, Mr.N.K.Majmudar and learned APP, Mr.H.L.Jani for the respondent-State. 6.Mr.Majmudar has mainly concentrated his arguments on the point of sentence. For that, he has drawn our attention towards the date of disposal of the case by the trial court i.e. 25-1-2000 and date of recording of evidence of last witness by the trial court i.e. 30-10-2001 together with the amended Act which has come into force on 2-10-2001 by the Act 9 of 2001. It is argued that as the amended Act has come into force during the pendency of trial, as per the settled law, benefit of amended Act is required to be given to the appellant. In view of the above, keeping in mind the provisions of Secs.18(c) and 21(b) and also the quantity alleged to have been seized from the appellant, maximum punishment awardable to the appellant would CR.A/320/2002 8/19 JUDGMENT be to the extent of 10 years with fine of Rs.1,00,000/-. In the present case, the Court has awarded 12 years with a fine of Rs.1,00,000/- each, in default, to undergo further two years RI for the offence under Sec.8(c)-18 as well as under Sec.21 of the Act. Therefore, according to him, the sentence imposed on the appellant is not according to law. 7.Mr.Majmudar has also taken us through the oral as well as documentary evidence and the reasoned judgment delivered by the court below and fairly admitted that there is a compliance of Sec.42 onwards of the Act as well as directory provision also. Ultimately, he is not in a position to sustain his argument regarding the compliance of requirements of the Act. 8.Learned APP, Mr.Jani, has not disputed the facts narrated by the learned counsel for the appellant as to the last date of recording of evidence, the date of delivery of judgment CR.A/320/2002 9/19 JUDGMENT and also the fact that the amended Act came into force on 2-10-2001. Therefore, he has voluntarily told the Court that if legally entitled, he may be given benefit of the amended Act. 9.As far as other aspects are concerned, he took us through the oral as well as documentary evidence and argued that there are all required compliance of the provisions of the Act and, therefore, except the above referred benefit, the appellant is not entitled for any other benefit. 10.We have also gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties together with reasoned judgment delivered by the court below. As the learned counsel for the appellant has restricted his arguments to the extent as indicated hereinabove, we are not reproducing or discussing other evidence which are on record. CR.A/320/2002 10/19 JUDGMENT 11.It is required to be noted that the prosecution has examined P.W.1, Kaushikbhai Dinkarrai Pandya at Ex.10. He is the PSI of Narcotic Cell and at 00:00 hours he was patrolling in Palej area when he received an information from his informant that one person namely, Faiz Mahmad Sakurakha Qureshi, resident of Madhya Pradesh is doing the business of cattle and regularly coming and going to Palej and in the shade of the same, he is dealing in narcotic drugs. On that day, he is likely to come very near to Palej four cross roads with narcotic substance and, therefore, he reduced the same in writing and handed over the same in sealed cover to his Superior Officer and made a note in Station diary and also called LCB Police Officer, Mr.Zala by wireless message. He also called two panchas and they as well as the informant were introduced to Mr.Zala. Thereafter, they have given search to each other but nothing was found from them. Thereafter, he prepared primary panchnama in CR.A/320/2002 11/19 JUDGMENT the Police Station and he, Mr.Zala, Head Constable, Rasikbhai and two panchas went in Police vehicle to Palej four cross road. They also kept required materials such as cloth, thread, etc. duly sealed. Thereafter they hid themselves very near to Jakat Naka. At that time, one person was coming towards Palej Village and informant identified him as the said man and, therefore, when he came very near to the cabin, he was stopped by Mr.Pandya and inquired about his name, address etc. That person told his name as Faiz Mahmad Sakurakha Qureshi, a resident of M.P. Thereafter, P.I., Mr.Zala told him that he is a Gazetted Officer and Narcotic Cell had an information of narcotic substance being possessed by him and therefore his search is required to be taken. Hence, if he would like to be searched in presence of a Gazetted Officer or an Executive Magistrate, they would arrange for the same. However, he refused for the same. As he was a Hindi speaking person, all the talks took place in CR.A/320/2002 12/19 JUDGMENT Hindi. He has further deposed that thereafter at the time of search, they found Indian currency from his pocket which has been given back to him and from his pocket, they found a receipt issued by Anjuman Islam of Palej which was seized. On searching his gunny bag (thelo), they found one more bag and on opening the same, they found some pieces of uneven round shape substance which is brown in colour and on smelling the same, prima facie they found that to be narcotic substance opium. He has further deposed that thereafter when it was weighed, it was found to be weighing 2 kg. and 100 gm. Thereafter, two samples each of 50 gms were prepared and sealed the same separately with the panch slip and affixing the seal of Narcotic Cell. Rest of the muddamal has also been seized after putting the panch slip and seal of Narcotic Cell. Even during that period, photographer was called and photographs of panchas, accused and others were taken. Thereafter, panchnama has been completed. He CR.A/320/2002 13/19 JUDGMENT has further deposed that thereafter, he has prepared the complaint on behalf of the State and sent the same along with Police personnel, accused, muddamal and panchnama to Palej Police Station for registration. He has further deposed that in pursuance of that, same has been registered as Palej Police Station C.R.No.48 of 1998. He has also proved the information which he reduced in writing at Ex.11 in the Court, identified the muddamal and also the accused. He has categorically deposed the same and nothing contrary has come out turtling his evidence. 12.The prosecution has also got support to the above by way of oral evidence of Police Constable, Rasikbhai Chhaganbhai, P.W.6, Ex.28, who was also one of the persons of raiding party and in whose presence, all the procedures of search and seizure have been completed. 13.Over and above, the prosecution has got support from the testimony of Police CR.A/320/2002 14/19 JUDGMENT Inspector, LCB Police Station, Bharuch, Kiritsinh Surbha Zala, P.W.15, Ex.42, as regards the aspect of search, seizure and for the purpose of other procedural requirement. 14.As far as the muddmal is concerned, both the panchas who have been examined by the prosecution did not support the say of the prosecution and have been declared as hostile and, thereafter, cross examination has been done by the learned APP and through I.O. panchnama of search and seizure has been proved. 15.By way of oral evidence of Photographer, P.W.2, Shri Shivaji Laxman, Ex.18, the prosecution is able to prove the photographs and negatives at Exs.20 and 21 along with receipt ex.19. The photographer and other witnesses have identified and proved the panch slips affixed during that process. 16.As far as muddamal is concerned, as per the evidence of witness, after the search and seizure, muddamal has been sent to Palej CR.A/320/2002 15/19 JUDGMENT Police Station with the complaint, accused, panchnama and muddamal sample and on receiving the same, offence has been registered by PSO of Palej Police Station and muddamal has been handed over to Crime Writer Head of Palej Police Station, Yahyakhan Mahmudkhan, P.W.13, Ex.39 after making necessary endorsement. 17.Mr.Yahyakhan Mahmudkhan, who is the Police Constable of Palej Police Station has categorically deposed that Thakorebhai Asharam was the Crime Writer Head and now he is no more. On the date of incident early in the morning at about 3 O'clock, sealed packet muddamal has been handed over by Shri Thakorebhai to him for forwarding the same to FSL. It is further deposed that he has handed over the same to FSL. Through him, the prosecution has proved the muddamal which was in custody of Crime Writer Head, Shri Thakorebhai till it was received by the above referred witness. CR.A/320/2002 16/19 JUDGMENT 18.FSL report is also on record at pages 115 to 118 and FSL expert has opined that the muddamal received by Palej Police Station has been found to be the narcotic substance opium. 19.Thus, prosecution is also able to prove the information Ex.11 and also the aspect that the muddamal contraband opium weighing 2 kg and 100 gms. has been seized from the conscious possession of the appellant accused. Thereafter, all legal formalities have been properly followed by the prosecution and, therefore, according to us, it is a case wherein all required provisions of the Act have been followed by the prosecution while carrying search, seizure, etc. Therefore, no much arguments have been advanced by the learned counsel for the appellant but has rightly concentrated his arguments on the point of sentence. 20.From the facts and circumstances narrated hereinabove, we are of the opinion that the CR.A/320/2002 17/19 JUDGMENT prosecution is able to prove the entire link connecting the accused with the crime in question. Moreover, all the witnesses have also supported the case of the prosecution. The prosecution is therefore able to prove the guilt against the appellant accused beyond reasonable doubt. 21.As far as sentence is concerned, while awarding sentence, court below has lost sight of amended provisions of the Act. Apart from that, the attention of the court was also not drawn towards the amended Act which has come into force on 2-10-2001 and, therefore, while awarding sentence, court has not taken into consideration the same. This is a basic violation of the provisions of the Act and therefore, benefit is required to be given to the appellant accused to that extent and, therefore, we reduce the sentence imposed on the appellant from 12 years to 10 years RI jointly. Fine of Rs.1,00,000/- in each Section is reduced and a combine fine of Rs.1,00,000/- is imposed against the CR.A/320/2002 18/19 JUDGMENT appellant. The impugned judgment and order delivered by the court below is required to be modified to the aforesaid extent and the appeal is required to be partly allowed. 22.This appeal is partly allowed. Judgment and order of conviction and sentence dated 25-1- 2002 delivered by the learned 2nd Extra Assistant Judge and Special Judge, Bharuch, in Special NDPS Case No.11 of 1998 is modified and the concurrent sentence of 12 years each awarded for the offence under Sec.8(c) read with Sec.18 as well as under Sec.21 respectively of the NDPS Act is reduced to 10 years R.I. jointly with a fine of Rs.1.00 (Rupees Lakh only), in default, to undergo R.I. for six months. 23.In view of the above, Cri.Misc.Appln.No.2941 of 2002 does not survive and is disposed of accordingly. Rule is discharged. (R.P.DHOLAKIA,J) CR.A/320/2002 19/19 JUDGMENT (K.S.JHAVERI,J) radhan/