CR.A/832/2002 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 832 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= RAJESHKUMAR @ GUDDU JASHVAN SINH YADAV - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS SADHANA SAGAR appointed by Legal Aid Committee for Appellant(s) : 1, MR. L.R.PUJARI, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 26/02/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/832/2002 2/33 JUDGMENT 1.The appellant ('the accused' for short) and another accused, who has been acquitted, were charged and tried by the learned Additional Sessions Judge, Fast Track Court no.1, Vadodara in NDPS Case No. 10 of 2000 for commission of the offence u/s 8(c) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short), arraigned on the charge of having found with contraband article '4 bars of charas' weighing 1 kg. 626 grams, when they were apprehended by PW-4 Premdhar Amarnath Shukla, In-charge, PI, LCB Branch and PW-10 M.U.Mirza, PI, LCB Western Railway Vadodara, while they were patrolling at Platform No.2 and 3 of Vadodara Railway Station on 17.9.2000 at 2:35 PM. 2.At the end of the trial the accused was held guilty of the offence with which he was charged as his complicity is proved. Therefore, the trial Court convicted him vide judgment and order dated 27.9.2002 for commission of the offence under Section 8(c) read with Section 22 of the NDPS Act and sentenced him to suffer RI for 10 years and fine of Rs.1 lac, i.d. RI for further period of 1 year. 3.Aggrieved by the aforesaid judgment and order of conviction and sentence, the accused has filed appeal u/s 374 of the Code of Criminal CR.A/832/2002 3/33 JUDGMENT Procedure Code (“the Code” for short). 4.Briefly stated the prosecution case as disclosed from the FIR and unfolded during trial, is as under: 4.1 On 17.9.2000 at 14:00 hrs., PW-4 Premdhar Amarnath Shukla Incharge PI, LCB Western Railway Vadodara, Revabhai Mavjibhai, Laxmansinh Chandersinh Rathod, Head Constable, Hasnamahomad Valimohomad, Unarmed Head Constable, Jagdishkumar Kantilal, Police Constable, Firozkhan Nasibkhan, Police Constable, and Rameshbhai Manilal, Police Constable of LCB, Western Railway, Vadodara, were on patrolling at platform nos. 2 and 3 of Vadodara Railway Station. They saw two persons sitting with bags, near water tap. On seeing the police staff, both of them suddenly stood up and walked towards Southern end. PW-3 Laxmansinh Chandersinh Rathod, Unarmed Police Constable, Jagdishkumar Kantilal, Police Constable, and Firozkhan Nasibkhan, Police Constable doubted and ran after them and stopped both of them. On making inquiry, they were hesitating and appeared to be afraid. Their movement being doubtful, both of them were brought to the office of PSI, LCB, Vadodara. PW-3 Laxmansinh Chandersinh Rathod immediately called 2 panchas namely PW-1 - Virundrakumar Omprakash Sharma and PW-5 Kalicharan Harilal Agarwal. CR.A/832/2002 4/33 JUDGMENT They were asked to remain as panchas of a search panchnama as there was possibility that the two persons had offendable articles in their bags. Both the persons gave their willingness to be searched in presence of the two panchas. As both the persons were speaking Hindi, both were explained in Hindi about making search on their person and were also asked whether they wanted to search the police persons, they negatived. The two persons who were caught, were asked their names, one of whom stated his name as Rajeshkumar @ Guddu Jashvantsinh Yadav, aged 35 years, residing at Bedpur, Taluka Bharathna Thana Usarahar Dist. Itava, U.P. He was asked to give the key of his bag and he took out the key from his pocket of the pant and gave it. On opening the bag with the said key, a photo of Saibaba Shirdi was in uppor part and two injections and one lungi and there were plastic bags below it and two bars in one bag and two bags containing one Bar each were found from his VIP bag of Safari Alfa Company. Upon asking about the said four Bars in plastic bags, Rajeshkumar Yadav stated the same to be Charas. After removing the plastic bags from the said Bars, the Bars were of black-brown coloured. The same was smelt by the police personnels and the panchas and confirmed the smell of charas. He, therefore, was asked if he is required to CR.A/832/2002 5/33 JUDGMENT be examined in the presence of any other gazetted officer or a Executive Magistrate. He refused to be searched by a gazetted officer or a Executive Magistrate. Hasanmomahammad Valimohammad, an Unarmed Head Constable was asked to call a weighing machine to weigh the said Charas Bars. Firozkhan Naseebkhan, a Police Constable was also sent with a written yadi to call an officer from FSL. On checking the person of Rajeshkumar, currency note of Rs.90/-, a second class ticket dated 16.9.2000 from Ujjain to Vapi and a raxine cover in the name of Rajeshkumarsinh Guddu in Hindi were found. Upon asking the name of second person, he stated his name as Surendrakumar Shaligram Kushva, aged 60 years, residing at Rampurapachar, Taluka Bharathana Thana Ushrahar, District Itava, U.P.. He was also asked as to whether he wanted to keep any gazetted officer or a Executive Magistrate during search. He also refused to be searched by any gazetted officer of a Executive Magistrate. No offendable article was found from his bag or the person of said Surendrakumar. Only the currency notes of Rs.1200/- were found. 4.2 In the meantime Hasanmohammad, Head Constable brought Prabhudayal Kishanlal Thakore with an electric weighing machine. The weight of the Charas bars are as under: CR.A/832/2002 6/33 JUDGMENT Particular Weight KG Grams Value in Rs. Bar no.1 00.520 20800.00 Bar no.2 00.556 22240.00 Bar no.3 00.270 10800.00 Bar no.4 00.280 11200.00 1.626 65040.00 4.3 16 grams from Bar no.1, 12 grams from Bar no.2, 10 grams from Bar no.3 and 12 grams from Bar no.4 were taken from the aforesaid four Charas Bars in presence of the panchas and placed in four plastic bags. 4.4 At that time Ashokbhai R. Vaghela, Scientific Officer came with kit from FSL, Vadodara.. On making test on the said Charas Bar differently, the result was positive and prima facie the presence of Narcotic substance Charas was found and the certificate, in this respect was obtained. Out of the said 4 Chars Bars, about 12 grams from Bar no.1, 2 grams from Bar no.2, 6 grams from Bar no.3 and 8 grams from Bar no.4 were taken out and placed in plastic bags. A receipt regarding the aforesaid weight is obtained from PW-2 Prabhudayal Kishanlal Thakore and kept on record. CR.A/832/2002 7/33 JUDGMENT 4.5 Upon asking Rajeshkumar regarding the quantity which was found, he stated the same to have been supplied by Surendrakumar Kushva. Upon asking about any licence or permission for trafficking the quantity of Charas illegally, both the persons replied in negative. 4.6 The samples, taken from the Charas Bars for FSL, were kept in plastic bags and stappled. The same were placed in plastic small boxes and the slips bearing signature of the panchas were kept and tied with string. The wax seal of PI, LCB Railway Vadodara, in English, was affixed thereon and placed in different cloth bags and sealed again. All the other articles recovered from both the persons were also seized. Both the persons were arrested for commission of the offence under the NDPS Act and a letter stating the reasons of arrest was served to them. 4.7 The complaint for the aforesaid incident was filed by PW-4 Premdhar Amarnath Shukla in LCB Police Station, Western Railway, Vadodara against both the accused for commission of the offence u/s 8(c) read with Section 21 of the NDPS Act. 4.8 On filing of the complaint, investigation was carried out by PW-8 Omkarnath Shivbahadur CR.A/832/2002 8/33 JUDGMENT Tiwari and PW-9 Ghanshyamsinh Mansinh Zala. During the course of investigation, statement of witnesses was recorded. The contraband article Charas which was kept in the safe custody of PW-7 Dalpatsinh Kalyansinh was sent to FSL for analysis through PW-6 Natwarsinh Sankalsinh. On receipt of the report from the FSL certifying that the same was Charas and as the sufficient incriminating evidence was found against both the accused, charge sheet was filed by PW-9 Ghanshyamsinh Mansinh Zala against both the accused in the Sessions Court at Vadodara on 17.10.2000 for commission of the offence under Section 8(c) read with Section 21 of the NDPS Act. 4.9 The learned Additional Sessions Judge, Fast Track Court No.1, Vadodara before whom the trial was made over for trial, framed charge against both the accused for commission of the offence u/s 8(c) read with Section 21 of the NDPS Act. It was read over and explained to them. As the accused persons pleaded not guilty to the charge and claimed to be tried, they were tried in NDPS Case No. 10 of 2000. 4.10 In order to bring home the charge levelled against the accused, the prosecution has examined in all 10 witnesses, details of which are given in pargraph 11 of the CR.A/832/2002 9/33 JUDGMENT impugned judgment. They are as under: Status Name Exh. No. Page PW-1 Virendra Ompakash Sharma 16 33 PW-2 Prabhudayal Kishanlal Thakore 36 50 PW-3 Laxmansinh Chandersinh Rathod, Police Constable, Patrolling Staff 36 53 PW-4 Premdhar Amarnath Shukla, PSI, Patrolling Staff. 39 58 PW-5 Kalicharan Harilal Agarwal 42 68 PW-6 Natwarsinh Sankalsinh, Police Head Constable. 59 73 PW-7 Dalpatsinh Kalyansinh, PSI 63 78 PW-8 Omkarnath Shivbahadur Tiwari, IO 66 82 PW-9 Zala Police Inspector, IO 70 85 PW-10 M.U.Mirza, PI, Patrolling Staff 71 87 4.11 To prove the culpability of the accused, CR.A/832/2002 10/33 JUDGMENT the prosecution has also produced number of documents and relied upon the contents of the same, details of which are enumerated in paragraph 12 of the impugned judgment and order. They would be referred to in this judgment and order as and when required. 4.12 After recording of the evidence of the prosecution witnesses was over, the learned Special Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Code. In their further statement they denied the case of the prosecution in toto and stated that they have been falsely implicated in the case. However, they neither led any evidence nor did they examine any witness to support their defence. 4.13 On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial court held that the complicity of accused no.2 has not been established as he was not found with contraband article Charas, therefore, he was acquitted of the offence with which he was charged, whereas complicity of accused no.1, has been established, as he was found with the contraband article Charas kept in his bag, which was opened by him with his key and CR.A/832/2002 11/33 JUDGMENT the key was lying in his pocket. Therefore, the accused no.1 was held guilty for the offence punishable u/s 8(c) read with Section 22 of the NDPS Act. The trial Court, therefore, convicted him vide judgment and order dated 27.9.2002 for commission of the offence punishable u/s 8(c) read with Section 22 of the NDPS Act and sentenced to suffer RI of 10 years and fine of Rs.1 lac, i.d. of payment of fine RI for further period of 1 year, which has given rise to this Appeal at the instance of original accused no.1. 5.Ms. Sadhana Sagar, learned advocate, appointed by the Legal Aid Committee for the accused, has contended that the prosecution has examined the members of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non- compliance of the provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. She further contended that PW-1 Virendra Omprakash Sharma and PW-5 Kalicharan Harilal Agarwal who are the panch witnesses and according to the prosecution case in whose presence contraband article Charas was recovered from accused no.1, and, since they are the independent witnesses, have not supported the prosecution case, the prosecution has failed to establish CR.A/832/2002 12/33 JUDGMENT the charge levelled against the accused. It is highlighted by her that the prosecution has failed to establish the fact that the muddamal contraband article reached the FSL intact and there was possibility of tampering with the muddamal on its journey from the time of seizure and filing of the complaint till it reached to the FSL. According to her, there is non-compliance of the provisions of Sections 50, 52 and 55 of the NDPS Act. The trial Court has erred in holding that the muddamal Charas was properly and legally handled and it was not tampered with till it reached at FSL in sealed intact condition. She has also highlighted that there is a discrepancy in the weight of four samples in panchnama exh. 17 as well as FSL report exh. 74-75, and therefore, there is a reason to believe that the muddamal Charas was tampered with during the course of the journey from police station to FSL. On the aforesaid premises, it is submitted by her that the prosecution has failed to establish the charge levelled against the accused beyond reasonable doubt and, therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offences with which he was charged. She, therefore, urged to allow the appeal. CR.A/832/2002 13/33 JUDGMENT 6.In counter submission, Mr. L.R.Pujari, learned APP for the respondent – State of Gujarat has submitted that by voluminous evidence produced by the prosecution, the complicity of the accused is proved beyond reasonable doubt. The accused was intercepted and apprehended at platform no. 2 and 3 of Vadodara Railway Station, by PW-4 Premdhar Amarnath Shukla, PSI and PW-10 M.U.Mirza while they were on patrolling. He has also submitted that after following the mandatory provisions contained in the NDPS Act, the contraband article was seized and sealed in presence of the members of the raiding party as well as panchas. It is also submitted by him that the report of FSL in terms certified that the contraband article which was sent for analysis was Charas. It is also asserted by him that the prosecution has successfully established that the sample sent to FSL was not tampered with during the course of its journey from the stage of seizure and filing of the complaint till reaching at FSL. It is also pointed out by him that the panchas turning hostile is not unknown to criminal jurisprudence and that now-a-days it is on increase but that fact itself does not weaken the case of the prosecution as the case does not depend solely on the evidence of the panch witnesses. According to him if the evidence of the members of the raiding party CR.A/832/2002 14/33 JUDGMENT is of sterling quality then there is no reason to discard their evidence and on the basis of the evidence of the members of the raiding party, order of conviction can be passed. So far as discrepancy in the weight of four samples in the panchnama and FSL report are concerned, the said discrepancy is of very meager weight, which varies from 1 gram to 1 ½ gram, which is possible as it was weighed on two different scales. One scale which was brought by the Police Officer at the time of seizure and sealing and another weighing scale of FSL and, on this count, prosecution case cannot be thrown over board. On the aforesaid premises, according to Mr. L.R.Pujari, learned APP, the prosecution has established the case against the accused beyond reasonable doubt and, therefore, the trial court has rightly recorded the order of conviction and sentence. He further submitted that the impugned judgment and order does not call for any interference of this court in this appeal and as the appeal lacks merit, it deserves to be dismissed. He, therefore, urged to dismiss the appeal. 7.This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a compete and comprehensive appreciation of CR.A/832/2002 15/33 JUDGMENT all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme court while dealing with NDPS cases, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 8.At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder. 9.In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 CR.A/832/2002 16/33 JUDGMENT SC 7. In para 1 of the said judgment, the Supreme Court has observed as under: “The Statement of Objects and Reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith”. 10.In view of the stringent penal provisions and harsh punishment provided thereunder and in view of the observations made by the Supreme Court in the above referred to judgment, we have to find out as to whether CR.A/832/2002 17/33 JUDGMENT in instant case strict compliance of the safeguards provided under the statute have been observed by the Police Inspector and the Police Sub Inspector during the course of search of the accused and seizure of the muddamal, contraband article, charas. 11.In this connection, we shall first refer to the oral testimony of P.W-4 Premdhar Amarnath Shukla at exh. 39, page 58 of the paper book. He has inter alia testified that on 17.9.2000 he was Incharge Inspector in LCB Branch, Vadodara Railway Station. On that day at 2:00 p.m. He and PW-10 M.U.Mirza and Police Officer were patrolling at platform no. 2 and 3 at Vadodara Railway Police Station. At that time they saw two persons sitting with bags, near water tap. On seeing the police staff, both of them suddenly stood up and walked towards Southern end. PW-3 Laxmansinh Chandersinh Rathod, Unarmed Police Constable, Jagdishkumar Kantilal, Police Constable, and Firozkhan Nasibkhan, Police Constable doubted and ran after them and stopped both of them. On making inquiry, they were hesitating and appeared to be afraid. Their movement being doubtful, both of them were brought to the office of PSI, LCB, Vadodara. PW-3 Laxmansinh Chandersinh Rathod immediately called 2 panchas namely PW-1 - Virundrakumar Omprakash Sharma and PW-5 Kalicharan Harilal Agarwal. CR.A/832/2002 18/33 JUDGMENT They were asked to remain as panchas of a search panchnama as there was possibility that the two persons had offendable articles in their bags. Both the persons gave their willing to be searched in presence of the two panchas. He has testified that, as both the persons were speaking Hindi, both were explained in Hindi about making search on their persons and were also asked whether they wanted to check the police persons, they negatived. The two persons who were caught, were asked their names, one of whom stated his name as Rajeshkumar @ Guddu Jashvantsinh Yadav, aged 35 years, residing at Bedpur, Taluka Bharathna Thana Usarahar Dist. Itava, U.P. He was asked to give the key of his bag and he took out the key from his pocket of the pant and gave it. On opening the bag with the said key, a photo of Saibaba Shirdi was in uppor part and two injections and one lungi and there were plastic bags below it and two Bars in one bag and two bags containing one Bar each were found from his VIP bag of Safari Alfa Company. Upon asking about the said four Bars in plastic bags, Rajeshkumar Yadav stated the same to be Charas. After removing the plastic bags from the said Bars, the Bars were of black-brown coloured. The same was smelt by the police personnels and the panchas and confirmed the smell of charas. He, therefore, was asked if CR.A/832/2002 19/33 JUDGMENT he is required to be examined in the presence of any gazetted officer or a Executive Magistrate. He refused to be searched by a gazetted officer of a Executive Magistrate. Hasanmomahammad Valimohammad, an Unarmed Head Constable was asked to call a weighing machine to weigh the said Charas Bars. Firozkhan Naseebkhan, a Police Constable was also sent with a written yadi to call an officer from FSL. On checking the person of Rajeshkumar, a currency note of Rs.90/-, a second class ticket dated 16.9.2000 from Ujjain to Vapi and a raxine cover in the name of Rajeshkumarsinh Guddu in Hindi were found. Upon asking the name of second person, he stated his name as Surendrakumar Shaligram Kushva, aged 60 years, residing at Rampurapachar, Taluka Bharathana Thana Ushrahar, District Itava, U.P. He was also asked as to whether he wanted to keep any gazetted officer or a Executive Magistrate during search. He also refused to be searched by any gazetted officer or a Executive Magistrate. No offendable article was found from his bag or the person of said Surendrakumar. Only the currency notes of Rs.1200/- were found. He has testified that in the meantime Hasanmohammad, Head Constable brought a weigher Prabhudayal Kishanlal Thakore with an electric weighing machine. He has testified that the weight of the Charas CR.A/832/2002 20/33 JUDGMENT Bars as under: Particular Weight KG Grams Value in Rs. Bar no.1 00.520 20800.00 Bar no.2 00.556 22240.00 Bar no.3 00.270 10800.00 Bar no.4 00.280 11200.00 1.626 65040.00 He has testified that 16 grams from Bar no.1, 12 grams from Bar no.2, 10 grams from Bar no.3 and 12 grams from Bar no.4 were taken from the aforesaid four Charas Bars in presence of the panchas and placed in four plastic bags. At that time Ashokbhai R. Vaghela, Scientific Officer came with kit from FSL, Vadodara.. On making test on the said Charas Bars differently, the result was positive and prima facie the presence of Psychotropic substance Charas was found and the certificate,