IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 220 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH 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? : YES 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? -------------------------------------------------------------- ABDUL SALAM YUSUF SHEIKH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 220 of 1999 MR BS SUPEHIA for Petitioner No. 1 MR KC SHAH, APP for Respondent No. 1 - State -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH and MR.JUSTICE H.H.MEHTA Date of decision: 08/05/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) 1. The original accused - Abdul Salam Yusufbhai Shaikh of N.D.P.S. Case No.8/96 tried and decided by the learned Additional Sessions Judge, Valsad at Navsari (who will be referred to as 'the learned Judge of the trial court') has, by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short 'Cr.p.c.') read with Section 36-B of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the 'NDPS Act') challenged the correctness, legality, validity and propriety of judgment Exh.42 rendered on 30th December, 1998, in aforesaid NDPS Case No.8/96 by the learned Judge of the trial Court by which said accused came to be convicted under Section 235(2) of Cr.p.c. for offence punishable under Section 22 of the NDPS Act and he sentenced to undergo R.I. for 12 years and to pay a fine of Rupees One lakh, and in default of fine to undergo further imprisonment for one year. 2. The facts leading to this present appeal in a nutshell can be summarised as follows: 2.1 On 15.2.96, P.W.4 Mr.Prakash Mahendrabhai Jadav was serving as Police Inspector in State Narcotics Cell, CID Crime, Gujarat State, Ahmedabad. Mr.Jadav, in company of Deputy Superintendent of Police Mr.Modi, Police Inspector Shri N.M.Pathan and other Police personnel had come to Navsari to carry out the raid on the basis of information with regard to narcotic drugs. During their visit at Navsari, at about 19.00 hrs., Mr.Jadav received an information from one informant to the effect that one person named Abdul Salam Yusufbhai Shaikh, resident of Jumma Masjid, Navsari, was selling charas being narcotic substance, on the otta of Jumma Masjid at Navsari and that he had put on one sky coloured full sleeves open shirt and white pant. In the information, it was also stated that said person was of black complexion with small stature. On receipt of such information, Mr.Jadav informed the Deputy Superintendent of Police of Narcotic Cell Mr.Modi about the said information in writing. He by that writing requested to inform Police Inspector Mr.M.F.Jadav of Navsari Town Police Station. 2.2 Thereafter two independent persons who can act as panch witnesses were called in Navsari Town Police Station. Mr.Jadav apprised of the panch witnesses and other members of the staff and members of the raiding party about the information which he had received. Before leaving Navsari Town Police Station, inter-se search was taken and given to panch witnesses and members of the raiding party. Before leaving Navsari Town Police Station, Mr.Jadav drew a preliminary panchnama during the period between 19.35 hrs and 19.55 hrs. Thereafter, they left Navsari Police Station for Jumma Masjid. When they reached Jumma Masjid, they found that one person of small stature and whose complexion was black, was found sitting on the otta (steps) of Jumma Masjid. He had put on light sky coloured full sleeves open shirt and white pant. By rushing towards that person immediately that person was caught hold off by members of raiding party and they made a cordon surrounding that person. Mr.Jadav asked the name of that person, and on being asked that person said that he was Abdul Salam Yusufbhai Shaikh, resident of Jumma Masjid, Navsari ( he is appellant before this Court). 2.3 Thereafter, Mr.Jadav apprised of appellant about the information which he had received. Mr.Jadav made the appellant to understand that he wanted to search his person and therefore if he wanted to call a Magistrate he could call such Magistrate or that if he wanted to go to some Magistrate or if he wanted to get himself searched by some Gazetted Officer he could do so. The appellant declined to call anyone. For giving this type of information to appellant a separate writing was given to the appellant. The appellant allowed Mr.Jadav to take search of his 'person'. On making search of 'person' of the appellant in presence of panch witnesses, some article was found concealed in the waist portion of his pantaloon. On making further search of that waist portion of his pantaloon just below the open shirt, one polyethylene bag containing some substance was found. On opening that polyethlyene bag it was found that it was containing some black coloured substance. That substance was smelt by Mr.Jadav, panch witnesses and other members of the raiding party, and it was found that it was charas. For keeping such contraband article/charas, pass and permit were asked for from the appellant. He informed that he had no such pass or permit. Thereafter, Mr.Jadav got that substance weighed through Police Jamadar Ishvarlal Ganeshlal on weighing scale. It was found that it was weighing 430 grams and its estimated value was about Rs.8,600/-. From that 430 gms. of charas, 50 gms of charas was taken in one another polyethylene bag for the purpose of sample. That polyethylene bag containing 50 gms of charas which was taken as a sample was tied with string and that polyethylene bag was put in one tin box of Babool Jafarani Jarda Tobacco. Thereafter a paper slip containing the signatures of panch witnesses and Mr.Jadav was placed over that polyethylene bag of sample and then that tin box was closed with its lid. Thereafter, that tin box was properly packed and duly sealed and a seal of Police Inspector, Narcotic Cell, CID Crime, Ahmedabad, was put on that wax seal. Thereafter remaining substance i.e. 380 gms of charas was kept in that very polyethylene bag from which it was found. That polyethylene bag was also tied with string and it was placed in a tin box meant for Jarda Tobacco of Tulsi Jaffrani. That another tin box was also properly packed and duly sealed in presence of panch witnesses. During the search, currency of Rs.550/- was also found from the right pocket of pantaloon which that person had put on. Thereafter, that person was formally arrested. He was informed about the grounds of his arrest. The grounds of arrest were also stated to the wife of appellant, in writing. Thereafter, Mr.Jadav completed panchnama for the entire procedure of search, recovery and seizure of contraband article and muddamal sample article and currency of Rs.550/-. That panchanam was drawn just below earlier preliminary panchnama which was drawn in the Navsari Police Station, before leaving for Jumma Masjid. That panchnama came to be completed at 20.45 hrs. That panchnama was signed by two panch witnesses and Mr.Jadav. 2.4 Thereafter, Mr.Jadav lodged his complaint against appellant in Navsari Town Police Station at 21.30 hrs. on 15.2.96. That complaint came to be registered as C.R.No.III 187/96. The case which was registered on the basis of that complaint was investigated by P.W. 6 Police Inspector Mr.Maganbhai Fakrubhai Jadav. The muddamal sample article was sent to Forensic Science Laboratory, Ahmedabad, (for short 'FSL') along with covering letter dated 15.2.96 through proper channel of Deputy Supd. of Police, Navsari. That muddamal sample article was received by Officer of FSL on 19.2.96. That muddamal sample article was analysed on or about 10.5.96. The Assistant Director of FSL sent report of analyses to PSI, Navsari Town Police Station. As per that report, the substance which was sent for analyses was found to be a charas within the meaning given under the provisions of NDPS Act. On receipt of such report, the Investigating Officer filed the chargesheet against appellant in the Court of Special Judge, Valsad at Navsari on 17.5.96. That chargesheet came to be registered as Special NDPS Case No.8/96. 2.5 The learned Judge of the trial court who also presided over the Special Court constituted under Section 36 of the NDPS Act, on the basis of material on record, framed charge against accused on 11.4.97 for offence punishable under Section 22 of the NDPS Act. On recording plea of the appellant he pleaded not guilty to the charge and claimed to be tried. 2.6 In order to prove the case against accused for which charge was framed, the prosecution examined following witnesses: (1) P.W.1 Shri Jahagir Dinshaji Dhalu Ex.6 ( a panch witness) (2) P.W.2 Shri Gulam Sabbir Rahimmiya Exh.8 ( a panch witness). (3) P.W.3 Police Jamadar Shri Ishvarlal Ganeshlal Exh.12 (one of the members of the raiding party who weighed the contraband article found from the appellant). (4) P.W.4 Police Inspector Mr.Prakash M.Jadav Ex.13 (Raiding and Seizing Officer and the Complainant). (5) P.W.5 Smt.Rajnikanta Narendra Shah Exh.26 (Scientific Officer of FSL) (6) P.W.6 Police Inspector M.F.Jadav Exh.28 (Investigating Officer who filed the chargesheet). (7) P.W.7 Prahladrai Labhshankar Joshi Exh.31 (Assistant Director of FSL). 2.7 In support of the case against the accused for which the charge was framed, the prosecution also produced and proved certain documents. The prosecution has placed heavy reliance on the following documents out of the documents which are produced by the prosecution; 2.8 (1) Panchnama Exh.7. (2) A written information given to appellant so as to make a compliance of Sec.50 of the NDPS Act Exh.14. (3) A copy of forwarding letter under which the muddamal sample article was sent to FSL Exh.15. (4) Seizure Memo issued to appellant and which is signed by the appellant Exh.16. (5) A written information given to appellant informing him the grounds of arrest Exh.17. (6) Complaint Exh.18. (7) A report along with which complainant sent the muddamal sample article and other articles seized from the appellant, panchnama, complaint alongwith custody of the appellant sent to PSO, Navsari Police Station Exh.19. (8) Information received by Mr.P.M.Jadav who immediately reduced it into writing Exh.20. (9) Report of FSL Exh.27. (10) A letter of Police Inspector, Navsari Town Police Station addressed to Director FSL Exh.29. (11) A receipt issued by Assistant Director, FSL for having received one parcel from Police Inspector, Navsari Town Police Station Exh.30. 2.9 On recording of evidence of prosecution witnesses was over, the circumstances appearing against the appellant were brought to the notice of and explained to appellant. Whatever the replies were given by appellant to questions put to him, were recorded below Exh.2 as a result of which further statement of appellant came to be recorded under Section 313 of Cr.p.c. The appellant has practically denied the entire case of the prosecution, meaning thereby, the defence of the appellant is of general denial. In reply to question No.72, the appellant has stated that he has not committed any offence and a false case has been lodged against him. The appellant has neither examined himself nor any witness in his defence. Before the arguments were advanced for and on behalf of the prosecution, the appellant filed his written arguments as per the provisions of Sec.314 of Cr.p.c. The learned Judge of the trial court after hearing the arguments of the learned advocates for both the parties, and after making scrutiny, thorough examination, analyses and appreciation of the evidence on record, came to a conclusion that prosecution has proved the case against the appellant beyond reasonable doubt. On the basis of such conclusion, the learned Judge of the trial court by rendering his judgment Exh.42 on 30.12.98 in aforesaid NDPS Case No.8/96, convicted the accused under Section 235(2) of Cr.p.c. for offence punishable under Section 22 of the NDPS Act and thereafter, after hearing the appellant as well as the learned APP who appeared in the trial court, on the question of quantum of sentence, the learned Judge of the trial court inflicted sentence as stated in earlier part of this judgment. 2.10 Being aggrieved against and dissatisfied with the said judgment of conviction and sentence, the original accused who is appellant in this appeal has, preferred this present appeal. 3. We have heard Shri B.S.Supehia, learned advocte who is appointed in Legal Aid by this Court for the appellant and Mr.K.C.Shah, learned APP for the respondent State in detail, at length. Mr.K.C.Shah has taken us through the entire evidence on record. 4. Mr.B.S.Supehia, learned advocate who is appointed in Legal Aid by this Court has vehemently argued that in this case P.W.4 Mr.P.M.Jadav committed breach of Section 42 of the NDPS Act, and as Section 42 of the NDPS Act is mandatory in nature, the trial following entire raid is illegal and it vitiates the conviction. In this appeal, Mr.Supehia has taken no other contention except the contention with regard to breach of Section 42 of the NDPS Act. He has, therefore, submitted to this Court that, as there is a clear cut violation of Sec.42 of the NDPS Act, this appeal deserves to be allowed and the impugned judgment of conviction and sentence be set aside. Lastly he submitted that the appellant be acquitted of the offence for which the charge was framed against him. 5. Mr.K.C.Shah, learned APP for the respondent State has supported the impugned judgment which is challenged in this appeal, throughout. He has submitted that there is an ample evidence on record to show that Mr.P.M.Jadav fully observed and complied with the provisions of Section 42 of the NDPS Act and, therefore, the contention taken by Mr.Supehia is devoid of merits and same is required to be straightway rejected. Lastly, he requested this Court to dismiss the appeal by confirming the impugned judgment. 6. We have dispassionately considered the submissions made by learned advocates for both the parties. We have thoroughly examined and scrutinised the evidence on record. For arriving at our own conclusion, we have reappreciated the evidence on record. We have also examined the impugned judgment and record and proceedings of the case which are called for from the trial court. Looking to only contention taken by Mr.Supehia, we have to examine the evidence on record so as to satisfy on the point as to whether P.W.4 Mr.P.M.Jadav had infact complied with the provisions of Section 42 of the NDPS Act. For this purpose, it would be necessary to examine the provisions of Sec.42 of the NDPS Act. Section 42 of the NDPS Act reads as follows; "Sec.42 : Power of entry, search, seizure and arrest without warrant or authorisation:- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such enry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior." 7. Looking to the text of Section 42 of the NDPS Act, an authorised officer who is invested with the powers of entry, search, seizure and arrest without warrant or authorisation by special or general order either by the Central Government or the State Government can make entry in any building, conveyance or enclosed place between sunrise and sunset and may make search, seizure and arrest if any contraband article in respect of which an offence punishable under Chapter IV is kept or concealed in such building, conveyance or enclosed place. Looking to Section 42 of the NDPS Act, a duty is cast on such authorised officer to reduce the information, if any given to him into writing and as per sub-sec.(2) of Sec.42 of the NDPS Act a further duty is cast to send copy of such information to his immediate official superior, forthwith. Looking to Section 42 of the NDPS Act following two requirements are to be fulfilled by an authorised officer who is empowered with powers of entry, search or arrest without warrant either by the Central Government or the State Government. (1) If an officer receives an information through an informant or any other person then he is required to reduce that information in writing. (2) He is also required to send copy of such information which he has reduced into writing to his immediate official superior forthwith. 8. Shri Supehia has argued that P.W.4 Mr.P.M.Jadav has not stated anywhere in his deposition that he reduced the information into writing. If we examine the evidence of P.W.4 Mr.Jadav, we find that he has only deposed in his evidence that he informed Mr.Modi, Deputy Supdt. of Police of Narcotic Cell about the information, in writing and he also informed about it to Mr.M.F.Jadav who was Police Inspector of Navsari Town Police Station. Shri Supehia has argued that Mr.Jadav has not reduced into writing the information immediately after he received the same from the informant. In examination-in-chief, he has deposed that he and other officers of his department had come to Navsari for raid in connection with narcotic drugs, and during that time, at about 19.00 hrs. he came to know that one person named Abdul Salam Yusufbhai Shaikh resident of Jumma Masjid, Navsari, was selling charas on the otta of Jumma Masjid and that he had put on light sky coloured full sleeves' open shirt and white pant. In the information he also came to know that person was of small stature with black complexion. Immediately, thereafter he did not state that he reduced that information into writing. In cross-examination he has deposed that information with regard to this crime was received by him in Navsari Police Station at about 7.00 p.m. i.e. 1900 hours. He has further deposed that for this he informed Police Inspector of Navsari Police Station orally but he did not informe him by sending a writing. By reading this evidence, Shri Supehia has argued that Mr.P.M.Jadav has committed breach of a mandatory requirement of reducing the information into writing immediately on receipt of such information by him. He has further argued that, when information was not reduced into writing, for Mr.Jadav question does not arise for sending copy of it to his immediate superior officer and, therefore, provisions of sub-sec.(2) of Sec.42 of the NDPS Act are also not complied with and, therefore, Sec.42 which is mandatory in nature is not complied with and therefore, the trial has become vitiated and conviction cannot be sustained and clear cut acquittal be given to the appellant. 9. As against aforesaid arguments, Mr.K.C.Shah, learned APP has countered the contention by arguing that in this case in stead of reducing the information into writing separately on separate sheet of paper Mr.Jadav immediately prepared a letter addressed to Deputy Supdt. of Police, Narcotic Cell, CID Crime, Gujarat State, Ahmedabad, in his own hand writing by placing a carbon below the original and original was immediately given to Shri Modi, Deputy Supdt. of Police of Narcotic Cell who had come all along with him to Navsari, from Ahmedabad, and on receipt of said original, Mr.Modi put an endorsement to the following effect. A carbon copy of the said letter is produced at Exh.20. "Received Sd/- ........ 15/2 19.15 hrs." 10. Mr.K.C.Shah has argued that instead of reducing the information into writing separately, Mr.Jadav straightway prepared a letter Exh.20 in his own hand writing of which original was given to his immediate official superior. Mr.K.C.Shah has argued that from the very beginning it is the case of the prosecution that Mr.Jadav received an information at 19.00 hrs. and original letter Exh.20 was received by Deputy Supdt. of Police at 19.15 hrs and, therefore, there was no delay, at all in sending the information to Mr.Modi and, therefore, in this case, Mr.Jadav instead of writing an information separately on another paper wrote down the information in the letter Exh.20 itself and original was given to Mr.Modi who is admittedly immediate superior official of Mr.Jadav and, therefore, in this case, Section 42 is fully complied with in its true letter and spirit and therefore, in no case it can be said that Section 42 of the NDPS Act was not observed by Mr.Jadav. 11. Mr.Supehia enlarged his arguments by submitting that there should be two separate papers; one showing the information having been reduced into writing by Mr.Jadav and another separate paper showing that copy of information which was reduced into writing on former paper was sent to immediate official superior. He has argued that looking to the text of letter Exh.20, it can merely be said that Mr.Jadav intimated his immediate superior officer about the proceeding intended to be taken by him and this letter Exh.20 cannot be said to be a document in compliance with sub-sec.(2) of Sec.42 of the NDPS Act. He has further argued that what is required in Section 42 of the NDPS Act is to be complied strictly in accordance with the mandate given in that section. Mr.Jadav cannot avoid the requirement of reducing the information into writing by mere giving intimation Exh.20 to his immediate superior officer. In short, the submission is to the effect that there should be two separate sheet of papers; one for compliance of sub-sec.(1) of Sec.42 of the NDPS Act and another for compliance of sub-sec(2) of Sec.42 of the NDPS Act. 12. As observed by the Division Bench of this Court in the case of Kamlesh Parmanand Gangwar Vs. State of Gujarat reported in 1999(3) Vol.40 GLR 2119, the purpose behind the requirement of informing immediate superior as provided under Sec.42(1) of the Act is to protect the interest of a citizen and to eliminate the possibility of any manipulation or