CR.A/658/2002 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 658 of 2002 WITH CRIMINAL APPEAL No. 1005 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 ? =================================== AMBALAL MADHAVLAL PATEL - Appellant Versus STATE OF GUJARAT - Opponent =================================== CR.A/658/2002 2/42 JUDGMENT Appearance : CRIMINAL APPEAL No. 658 of 2002 MR.SUBHASH G BAROT for Appellants. MR KT DAVE, A.P.P for Opponent. CRIMINAL APPEAL No.1005 of 2002 MR KT DAVE, A.P.P for Appellant. MR.MUKESH VAIDHY with JR DAVE for Opponent. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 30/11/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K. A. PUJ) 1. Since both these appeals are filed against the same judgment and order dated 15.7.2002 passed by the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No.5 of 2002 (NDPS) and since both these appeals are heard together, the same are being disposed of by this common judgment. CR.A/658/2002 3/42 JUDGMENT 2. Criminal Appeal No.658 of 2002 is filed by the appellants – original accused Nos.1 and 2, who are convicted under Section-8(c) read with Section-18 of the Narcotic Drugs Psychotropic Substance Act, 1985 (hereinafter referred to as 'the Act' and ordered to suffer R.I for a period of 10 years and fine of Rs.1 lac and default thereof to undergo R.I for 1 year to each one of these two appellants – original accused. 3. Criminal Appeal No.1005 of 2002 is filed by the State of Gujarat against the respondent – original accused No.3, who was acquitted from the charge of offence punishable under Section-8(c) read with Section-18 of the NDPS Act, by the very same judgment and order dated 15.7.2002. 4. The case of the prosecution as revealed in the complaint and as unfolded during the course of trial is briefly stated as under :- 5. It is the case of the prosecution that Mr.J.J.Desai, CR.A/658/2002 4/42 JUDGMENT Police Inspector of Halol Police Station lodged FIR against the present appellants in Criminal Appeal No.658 of 2002 and the respondent in Criminal Appeal No.1005 of 2002 for the offence punishable under Sections-8(c), 17, 18 and 49 of the Act. The FIR lodged by the first informant, Police Inspector of Halol Police Station is registered as III CR No.74 of 2002. The first informant has alleged that when the first informant and other staff members were on the night petrolling, the first informant received an information that three persons were coming on motor-cycle from the side of Kalol with opium and they would go towards Baska, from the by-pass situated after Navjeevan Hotel. The first informant has alleged that after receiving the said information, the first informant with other members of the staff and two panch witnesses blockade the place from where the appellants and other accused were going to pass as per the information received by the first informant. The first informant alleged that when the first informant with other staff members and panch witnesses was on the place of blockade, one motor- CR.A/658/2002 5/42 JUDGMENT cycle came from the side of Kalol and passed the Hotel Navjeevan and when the motor-cycle turned on the by-pass the first informant and the staff members of the first informant tried to intercept the motor- cycle but, motor-cyclist did not stop the motor-cycle and, therefore, the first informant and other staff members of the first informant chased the motor- cycle with the help of Jeep. The first informant has alleged that after few distance, the first informant and other staff members of the first informant caught the motor-cycle with three accused. The first informant has alleged that when he asked the name of driver of the motor-cycle in the presence of witnesses, the driver of motor-cycle gave his name as Ambalal Madhavlal Patel, resident of Derol Station. The first informant has alleged that the person who was sitting in between has named himself as Kishanlal Thakurmal Khatik, resident of Hotel Bhiravnath, Taluka – Kalol, and the person who was sitting at last named himself as Kishan Maginram Patel, resident of Rajasthan. The first informant has alleged that from the person, who was sitting CR.A/658/2002 6/42 JUDGMENT between two other persons, was having one plastic bag. The first informant has alleged that when the said plastic bag was opened in the presence of panch witnesses, there was another plastic bag and in the said another plastic bag, there was thick black liquid in one plastic bag. The first informant has alleged that after verifying the said thick black liquid, he came to know that it was opium. The first informant has further alleged that as he came to know that the thick black liquid is opium, he sent one Police Constable, namely, Manabhai Rupabhai for bringing a person who can weigh the opium. The first informant has alleged that the said Manabhai Rupabhai came with Jayantilal Viththaldas Mod, resident of Parshwanath Society with instrument of weighing. The first informant has alleged that the weight of the opium with plastic bag was 2kg. and 200 grams. The first informant has alleged that the price of the said opium can be computed at Rs.33,000/-. The first informant has alleged that he could not find anything from the person of another two persons after search. The first informant has CR.A/658/2002 7/42 JUDGMENT further alleged that the motor-cycle was of the Yamaha Company and of black colour. The back number plate of the motor cycle was having No.GJ-1- M-5266. The first informant has further alleged that the said three persons could not produce any pass/permit to keep opium in possessions and, therefore, he took 500 gram of opium in plastic bag for sample. The first informant has further alleged that after taking the sample and completing the requirement of sealing the sample and remaining opium, he seized the goods and motor-cycle. The first informant, Police Inspector thereafter lodged the FIR against all the three original accused for the offences punishable under Sections-8(c), 17, 18 and 49 of the Act. 6. Pursuant to the registration of the offence, the investigation was put into motion. During the course of investigation, statements of the witnesses were recorded, panchnama of scene of offence was prepared, muddamal articles were recovered by drawing panchnama which were sent to F.S.L. for CR.A/658/2002 8/42 JUDGMENT chemical analysis. After obtaining F.S.L. Report, since sufficient incriminating evidence was found against the accused, they were charge-sheeted in the Court of learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra. The learned Additional Sessions Judge, Panchmahal at Godhra framed charge against the accused for commission of the offence punishable under Sections-8(c), 17, 18 and 49 of the Act. 7. The charge was read over and explained to the accused. As the accused have not pleaded guilty to the said charge, they were put to trial and tried by the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 5 of 2002 (NDPS Act). 8. To prove the culpability of the accused, prosecution has in all examined as many as 7 witnesses, details of which are as under :- CR.A/658/2002 9/42 JUDGMENT Sr. No. Exh. Description Page No. 1 9 Deposition of P.W. No.1 Manabhai Rupabhai 89 to 106 2 10 Deposition of P.W. No.2 Jitendrakumar Maganlal Bhagt 107 to 114 3 12 Deposition of P.W. No.3 Manojkumar Kanaiyalal Soni 123 to 128 4 14 Deposition of P.W. No.4 Jayantilal Viththaldas 129 to 136 5 15 Deposition of P.W. No.5 Ramabhai Lakhabhai 137 to 140 6 16 Deposition of P.W. No.6 Chandrasinh Somsinh 141 to 158 7 24 Deposition of P.W. No.7 Jayraj Jivrajbhai Desai 189 to 198 9. Prosecution has also produced several documents and relied upon the contents of the same, details of which are as under :- Sr. No. Exh. Type of Evidence Page No. 1 1 Charge-sheet 27 to 30 2 4 Charge 31 to 36 3 11 Panchnama 115 to 122 4 17 Letter addressed to Police Officer 159 to 160 5 18 Letter addressed to FSL, Ahmedabad 161 to 164 6 19 Letter addressed to P.I. Halol 165 to 168 7 20 Letter addressed to P.I. Halol 169 to 172 8 21 FSL Report 173 to 184 9 22 Serological Report 185 to 188 10 25 Original Complaint 199 to 206 10.After recording of the evidence of the prosecution CR.A/658/2002 10/42 JUDGMENT witnesses was over, the learned Special and Additional Sessions Judge, Panchmahal at Godhra explained the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement, as required under Section 313 of the Code. In their further statement, the accused denied the case of the prosecution by reiterating that they have been falsely implicated. 11.On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra has held that the prosecution has established beyond reasonable doubt that the charge levelled against the accused Nos. 1 & 2 was proved and, therefore, the accused Nos. 1 & 2 were held guilty of the offence punishable under Sections-8(c) read with Section 18 of the Act. The learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra has, however, acquitted the accused No. 3 from the charge levelled CR.A/658/2002 11/42 JUDGMENT against him. Thereafter, the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra heard the accused and their advocate on sentence and looking to the gravity of the offence committed by the accused and looking to the circumstances, original accused Nos. 1 & 2 were sentenced to suffer rigorous imprisonment of 10 years and fine of Rs. 1 Lac and in default thereof, R.I of one year. 12.Mr. Subhash G. Barot, learned advocate appearing for the appellants – original accused Nos.1 and 2 in Criminal Appeal No.658 of 2002 has submitted that the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra has committed error apparent on the case of record by convicting the appellants – original accused Nos.1 and 2 for the offence punishable under Section-8(c) read with Section-18 of the Act. He has further submitted that the learned Judge has misdirected himself in appreciating the evidence placed on record. He has further submitted that the learned Judge has CR.A/658/2002 12/42 JUDGMENT recorded the findings which are not based on the evidences placed on record. The learned Judge should have appreciated the evidences and should have also held that the prosecution has failed to prove the offences alleged against the appellants beyond reasonable doubt and, therefore, the learned Judge ought to have acquitted the appellants. He has further submitted that the appellants were unknown about the incident as alleged in the FIR by the Police Inspector of Halol Police Station. The appellant No.2 has deposed in his statement under Section 313 of the Criminal Procedure Code that they are falsely implicated by the police and at night when the alleged incident took place, they went to see movie in the show of 9:00 to 12:00 p.m at Halol and when they were taking tea and snack at Navjeevan Hotel, they were arrested by the police. He has submitted that this aspect of false implication was not considered by the learned Judge while convicting the appellants. He has further submitted that the search as alleged in the FIR was search of person (body of a person) and when all the witnesses CR.A/658/2002 13/42 JUDGMENT have admitted in their respective evidence that the accused No.2 was holding plastic bag containing contraband goods in his hand and, therefore, the mandatory requirements of Section-50 of the Act was required to be followed by the first informant. The prosecution could not lead any evidence regarding the compliance of Section-50 of the Act during the trial though it was incumbent upon the prosecution to show compliance of mandatory Section-50 of the Act. On the contrary, the learned Judge has observed in para-25 of the judgment that there is no evidence regarding compliance of Section-50 of the NDPS Act. Since the detention and conviction of the appellants are in violation of mandatory requirements of Section-57 of the Act by which the officer who has arrested or seized the goods is duty bound to make a full report of all the particulars of such arrest or seizer to his immediate official superior within forty eight hours. Shri J. J. Desai, Police Inspector has made arrest and seizer but he has deposed in his cross-examination that he has not informed his official superior regarding the arrest of CR.A/658/2002 14/42 JUDGMENT accused and seizer of contraband articles. He has further submitted that the letters at Ex.17 and 18 were written by the ASI – Chandrasinh to the Dy. Superintendent of Police for requisite certificate and they were not written by the Police Inspector who has conducted the search and seizer of contraband articles. Mr.Barot has further submitted that there is violation of Section-52(i) by which legislature has caste duty upon the Investigating Officer to inform the grounds of arrest to the accused. There was no evidence on record that the Investigating Officer has informed the grounds of arrest to the accused person, which has caused prejudice to the accused in defence. He has further submitted that there is violation of Section-55 of the Act by which the SHO / Officer in Charge of NDPS Act has to affix his seal on the contraband goods and sample taken from the contraband goods. The search and seizer was made by the Police-Sub-Inspector, Halol but the seal of the Police Inspector Halol is used. Thus, the authenticity of the recovery of contraband goods from the accused are very much in doubt. CR.A/658/2002 15/42 JUDGMENT 13.Mr. Barot has further submitted that no witnesses in their statements taken by the Police have deposed that the cloth was used at the time of sealing contraband goods, but in the chief before the learned Judge all the witnesses have stated that the cloth was used at the time of sealing the contraband goods. Thus, contradiction is very much apparent and that creates doubt about the authenticity of recovery of contraband goods. He has further submitted that there is infirmity in the investigation as after the arrest and seizer of goods by the Police Inspector, the further investigation was handed over to one Shri Chandrasinh Somsinh, who was discharging his duty as ASI in Halol Police Station and he was the party present at the time of search and seizer of the goods. This infirmity in the investigation has not been considered by the learned Judge. He has further submitted that no reliance can be placed on the evidence of panch witnesses as they are not independent witnesses. They deposed in their deposition that the police are calling them CR.A/658/2002 16/42 JUDGMENT many times as panch witnesses. The panch witness – Jitendrakumar Maganlal had deposed in cross- examination that in last one and half year, he has signed more than forty panchnamas. Thus, the panch witnesses are not independent witnesses and they were selected by the Police and signed the panchnama on dotted lines. 14.Mr. Barot has further submitted that as per the evidence of the first informant – Police Inspector, Halol, the seized goods were handed over to the PSO Halol Police Station, but no statement of PSO of the Halol Police Station was recorded nor he was examined as prosecution witness. The prosecution has not produced any evidence with regard to the entry of sample in custody register and, therefore, the version made by the first informant – Police Inspector, Halol is very much doubtful. Mr. Barot has further submitted that the prosecution has failed to lead any evidence regarding the receipt of any information from any unknown person to first informant as the first informant, Police Inspector, CR.A/658/2002 17/42 JUDGMENT Halol has not produced entry in daily diary to the effect that he has received information from any unknown person regarding commission of offence. He has further submitted that there is no wishper about at what time, the accused were arrested and contraband goods were seized in FIR. As per the Suchi Patra produced by the prosecution, the time of the commission of offence is shown at 4:00 p.m and time declaration of offence is shown as 4:30 p.m. The person who has weighed the contraband article was called at 2:15 p.m. Therefore, the time of commission of offence must be before 2:15 p.m. This aspect was not considered by the learned Judge. 15.Mr. Barot has further submitted that the prosecution has mainly relied upon the three police witnesses and person who has weighed the contraband. Both the panch witnesses were declared as hostile and their version was not relied upon by the learned Sessions Judge. Shri Jayantilal Viththaldas, who has weighed the contraband was not an independent witness to the search. The CR.A/658/2002 18/42 JUDGMENT evidence of the police is not considered to be the evidence of independent witnesses. When the requirements of Section-50 of the Act are not followed in search, the two independent witnesses have been declared hostile, then only after relying upon the police witnesses accused could not have been convicted. Mr.Barot has further submitted that there is contradiction in bringing empty tins from the Police Station to the place of offence. In deposition of ASI – Chandrasinh on one hand he has stated that after leaving the Police Station, PSI – Shri Desai had informed him regarding the information received from the unknown person and on the other hand in cross-examination he has stated that the empty tins in which they have seized the contraband goods were taken by them at the time of leaving the Police Station. Such contradiction has not been considered by the learned Judge. He has further submitted that the prosecution has failed to prove beyond reasonable doubt that the accused No.1 was in conscious possession of contraband goods. CR.A/658/2002 19/42 JUDGMENT 16.Mr. Barot has lastly submitted that the sealing procedure is also defective and slip duly signed by the panchas as well as P.I were not affixed as required under law and in accordance with the judgment delivered by this Court. 17.In support of this last submission, Mr. Barot relied on the decision of this Court in the case of Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas V/s. State of Gujarat, 2006 (1) G.L.H. 409 wherein after considering earlier three decisions of this Court, namely, (1) Chandrakant Nagindas Modi V/s. State of Gujarat, 1989 (I) FAC 153, (2) unreported decision dated 17.08.2001 rendered in Criminal Appeal No. 323 of 1996 filed by Jitendra @ Sanjaykumar Suryakant Desai against State of Gujarat and (3) decision dated 07.05.2002 rendered in Criminal Appeal No. 287 of 1999 filed by Ganpatram Punmaram Vishnoi against State of Gujarat, the Court held that as per the law laid down by this Court, the slips bearing signatures of the CR.A/658/2002 20/42 JUDGMENT panch-witnesses should be affixed on samples and thereafter seals should be applied so that if any attempt is made to tamper with sample, the slips affixed would get torn. On re-appreciation of evidence, the Court was satisfied that correct and fool-proof procedure of sealing was not resorted to by the Investigating Officer and possibility of tampering with muddamals was not ruled out at all. The Court has evaluated such deficiency in light of other discrepancies brought on record of the case and held that it was difficult to sustain conviction of the appellant – accused. The appeal was accordingly allowed and the appellant – accused was ordered to be released from jail forthwith unless his presence in jail was needed with reference to any other case. 18.Mr. K. T. Dave, learned Additional Public Prosecutor appearing for State of Gujarat, on the other hand, supported the order and judgment of the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra and submitted that there was no violation of any statutory provision and all CR.A/658/2002 21/42 JUDGMENT necessary compliances were made by the raiding parties and/or investigating agency and there was no substance in the argument that the provisions contained in Sections-50, 55 and 57 of the Act were violated. So far as sealing procedure is concerned, he has submitted that the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra has discussed at length this issue in the impugned judgment and order and he has come to the right conclusion that there was no violation of the sealing procedure. He has also considered evidence led by the prosecution before him and after considering the same, he has correctly recorded the conviction of the accused Nos.1 and 2. 19.While arguing the appeal filed by the State of Gujarat against original accused No. 3, Mr. Dave has submitted that the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra has not properly appreciated the oral as well as documentary evidence in its true perspective. He has erred in coming to the conclusion that prosecution CR.A/658/2002 22/42 JUDGMENT has failed to prove the case against the accused No. 3. He has further erred in coming to the conclusion that the accused No. 3 was not found in conscious possession of the contraband article and, therefore, he was entitled to acquittal. He has further submitted that the accused No.3 was also travelling with the accused Nos.1 and 2 on one motor-cycle and, therefore, there was no reason to acquit the accused No.3 when the original accused Nos.1 and 2 were convicted and sentenced. He has, therefore, submitted that the acquittal order passed by the learned Judge deserves to be reversed and the accused No.3 is required to be convicted in the same manner as accused Nos.1 and 2 were convicted. 20.We have considered the submissions advanced by Mr. Subhash Barot, learned advocate appearing for the appellants – original accused Nos. 1 & 2 and Mr. K.T. Dave, learned Additional Public Prosecutor appearing for State of Gujarat at length. We have also considered the submissions made by Mr.Dave, in Criminal Appeal No.1005 of 2002 and Mr. Vaidya, CR.A/658/2002 23/42 JUDGMENT learned advocate appearing on behalf of Mr. J.R. Dave. We have also undertaken a complete and comprehensive exercise of appreciating all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. We have also gone through the entire testimonial collections. We have applied our mind to the impugned judgment and order passed by the learned Special Judge and Additional Sessions Judge, Panchmahal at Godhra convicting the accused Nos. 1 & 2 and acquitting the accused No. 3. 21.Though several contentions were raised before the Trial Court and before this Court, we confine ourselves to deal with the strong protest lodged against sealing procedure adopted by the prosecution as well as conscious possession of the contraband articles so far as accused No.1 is concerned. Even otherwise, we are not impressed by the other contentions raised by Mr.Barot. The main grievance was that the identity of the muddamal and CR.A/658/2002 24/42 JUDGMENT the samples sent to the F.S.L. is not established. There was a possibility of tampering with the contents of the samples. The samples were not kept in safe and proper custody and the sealing procedure was absolutely defective. There is contradiction in the evidence of the prosecution witnesses with regard to the sealing procedure and the possibility of tampering the contents of the sample cannot be ruled out. 22.To examine and appreciate this contention, relevant