CR.AJ/635/2004 1/155 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 635 of 2004 With CRIMINAL APPEAL No. 885 of 2004 With CRIMINAL APPEAL No. 912 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? 6 Only Paragraph Nos.1 to 15 and Paragraph Nos.41 to 68 to be reported. ========================================================= SALIM SHAMSUDDIN SHAIKH & ORS. - Appellants Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : CRIMINAL APPEAL NO.635 OF 2004 MR.S.V.RAJU, SENIOR ADVOCATE FOR MR. CHETAN K PANDYA AND MR HIMANSHU J MEHTA; FOR APPELLANTS NO.2 (ORG. ACCUSED NO.2) CRIMINAL APPEAL NO.885 OF 2004 MR.S.V.RAJU, SENIOR ADVOCATE FOR MR.B.C.DAVE FOR APPELLANTS NO.1 (ORG. ACCUSED NO.1); CRIMINAL APPEAL NO.912 OF 2004 MR.J.M.PANCHAL, LD. ADVOCATE WITH MR.K.J.PANCHAL, FOR APPELLANT NO.4(ORG. ACCUSED NO.4) CR.AJ/635/2004 2/155 ORDER MS.PANDIT, ADDL. PUBLIC PROSECUTOR for Opponent-State of Gujarat ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 11/09/2007 CAV JUDGMENT These three appeals are preferred under the provisions of Section 374 read with Section 386 of the Code of Criminal Procedure, challenging the legality and validity of the order of conviction and sentence passed by the learned City Sessions Judge, Court No.11, Ahmedabad City disposing two Sessions Case No.46 of 1999 and Sessions Case No.190 of 2000, on 23rd April, 2004 whereby the learned trial Judge has held the accused Nos.1 and 2 guilty of the charge of offence punishable under Section 25 (1) (a) read with Section 35 of the Arms Act and sentenced him to undergo three years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default thereof to undergo three months rigorous imprisonment and the accused Nos.1, 2 and 4 have been held guilty of the charge of offence punishable under Section 25 (1AA) read with Section 35 of the Arms Act and sentenced them to undergo seven years rigorous CR.AJ/635/2004 3/155 ORDER imprisonment and to pay a fine of Rs.10,000/- each and in default of making payment of fine to undergo six months rigorous imprisonment. The leaned trial Judge has ordered that all the sentences shall run concurrently with benefit under Section 428 of the Code of Criminal Procedure. The appellant of Criminal Appeal No.635 of 2004 is original accused No.2, appellant of Criminal Appeal No.885 of 2004 is original accused No.1 and the appellant of Criminal Appeal No.912 of 2004 is original accused No.4. 2. Total nine accused persons were arrested and charge-sheeted by the Police for the offences punishable under Section 120 (B) of the Indian Penal code and under Section 25 (1) (a) and / or 25 (1AA) read with Section 35 of the Arms Act. On account of piecemeal arrest, the Police filed different charge-sheets against the accused persons and obviously therefore they were committed to the Court of Sessions accordingly. CR.AJ/635/2004 4/155 ORDER AS such five Sessions Cases were registered for one said offence. However, accused of Sessions Case No.309 of 1999, Sessions Case No.34 of 1999 and Sessions Case No.8 of 2000 came to be discharged by the learned City Sessions Judge. Out of nine accused persons, five accused persons were discharged and remaining four accused persons have been tried by both these Sessions Case being Sessions Case No.46 of 1999 and Sessions Case No.190 of 2000. Whereas, the original accused No.3-Abdul Mazid Baloch has been acquitted by the impugned judgment and order and the Court is informed by the learned Counsel appearing for the parties that the State has not preferred any appeal in respect of acquittal of original accused No.3. So, the judgment and order under challenge obviously shall have to be evaluated in the background of the evidence led by prosecution and submissions made in reference to the charge leveled against the three accused- appellants. All the three appeals challenging the common judgment and order of conviction and CR.AJ/635/2004 5/155 ORDER sentence are dealt with jointly and are disposed of by this common judgment. For the sake convenience the appellants have been referred as original accused No.1, 2 and 4 respectively hereinafter. 3. The legality and validity of the judgment and order is assailed on various grounds in all the three appeals and Mr.S.V.Raju, learned Counsel appearing for the original accused Nos.1 and 2 and Mr.J.M.Panchal, learned Counsel appearing for the original accused No.4 have taken me through the grounds mentioned in the memo of respective appeals and have made their detailed submissions. In the same way, the learned A.P.P., Ms.Pandit, has attempted to show that ultimate finding recorded by the learned trial Judge is based on sound reasons and no illegality or perversity is found in the finding arrived at by the learned trial Judge. According to her the evidence led by prosecution has been correctly appreciated keeping in mind the well CR.AJ/635/2004 6/155 ORDER established principles of law regarding appreciation of evidence. 4. Firstly, it is necessary for the court to state the case of prosecution in brief, which is reflected in charge (Exh.69) and relevant part of the charge reads as under. 1.“A complaint was lodged against you accused persons that on 5/2/1993 or thereabout you accused persons for doing crime activities in the city of Ahmedabad were storing, possessing, selling and transporting ammunitions and thereby committed offence punishable under Section 120 (B) of the Indian Penal Code. 2.Further it is alleged in the complaint that in furtherance to the conspiracy one Maruti Car, bearing Registration No.GCB-122 under your custody, containing six cartridges of . 455 Revolver, with a knowledge of selling and transporting the same, was recovered from your possession and thereby you accused persons committed offence punishable under Section 25 (1) (a) and 35 of the Arms Act read with Section 120 (B) of the Indian Penal Code. 3.It is further alleged in the complaint that you accused persons, in the Bungalow No.19 of CR.AJ/635/2004 7/155 ORDER Satyam Co-operative Housing Society Ltd., of Shahpur Area, which is under your possession, intentionally possessed prohibited ammunitions, i.e., one A.K. 47 Rifle and cartridges for selling and transporting it and thereby committed offence punishable under Sections 25 (1) (a), 25 (1AA) and under Section 35 of the Arms Act read with Section 120 (B) of the Indian Penal Code.” 4.1 The defence of original accused No.1 is of denial. However, the defence of original accused No.2 is defence of qualified denial with explanation that has been discussed by the learned trial Judge mainly in paragraph No.9 (Page No.258 to 259). The defence of original accused No.4 is of “false implication” and also of inadequacy of legal evidence to link the accused No.4 with the crime. 5. It is alleged that at about 7:00 p.m. on 4th February, 1993 one Constable of Boarder Wing -Manuji Rajput was on his duty in the Dariapur Area and on a chowky erected with a tent, one blue colour, Maruti Car without any number-plate CR.AJ/635/2004 8/155 ORDER coming from Dariapur Darwaja with excessive speed and therefore it was intercepted. He found Noor Mohmmed-original accused No.1-the driver of the car in a drunken condition, driving the car rashly. At that time, the Police Inspector, Mr.Zala, co-incidentally had reached there and Mr.Rajput had handed over the custody of said Maruti Car, as well as, accused No.1-Noor Mohmmed to Mr.Zala. Mr.Zala arrested Noor Mohmmed for the offence punishable under Section 279 of the Indian Penal Code and under Section 185 of the Motor Vehicles Act and thereafter the crime was registered with Dariapur Police Station vide C.R.No.I-50 of 1993. Noor Mohmmed alongwith Maruti Car was sent to the Police Station. 6. According to prosecution P.W.No.2, Mr.Novel Vovel Parmar, who was discharging his duty as Police Inspector, Dariapur Police Station had received secret information that one Noor Mohmmed alongwith original accused No.3-Abdul Wahab is indulging in the business of CR.AJ/635/2004 9/155 ORDER transportation of arms and ammunitions illegally and he has kept some cartridges in his car. When Mr.Parmar, P.I., found that this very person has been arrested and the car is also with Dariapur Police Station in one another crime, he called two Panchas prior to noon on 5/2/1993 and searched the car in presence of original accused No.1 and during that search the accused No.1 had taken out six live cartridges from a cavity on the rear seat created near the speaker of the car. These cartridges were found with a particular detail, that is, Eley (London) of .455 calibers. The cartridges were seized and Mr.Parmar gave complaint. Thereafter, he entrusted the investigation to Mr.Pachal, Police Sub Inspector of the City Crime. However, he also continued with him during the investigation. It is the say of prosecution that during interrogation, the Police Officers got some clue from accused No.1 and the Police was able to reach to Bungalow No.19 of Satyam Society occupied by Mohmeed Rafik Sheikh original accused CR.AJ/635/2004 10/155 ORDER No.4. In presence of two Panchas, the Police Officers had entered into that Bungalow. The original accused No.1 had accompanied during search. The bungalow was locked from outside and they entered into the Bungalow after opening a door covered with an iron grill and from cellar referred in the impugned judgment as “Bhoyra” the search party found three plastic bags and three jute bags. One plastic bag was containing an A.K.47 Rifle, three country-made pistols, live cartridges, magazines and about 159 live cartridges of various types and 18 used cartridges. Whereas, three jute bags were containing silver wire weighing of about 122.5 Killo Grams. All these muddamal were recovered. After seizure of the muddamal in presence of the Panchas, it was taken to the Police Station and during investigation the Police found that Maruti Car without number-plate was bearing registration No.GCB-122 and original accused No.2-Salim Samsuddin Sheikh is the owner of that car. The original accused No.2 ultimately came to be CR.AJ/635/2004 11/155 ORDER arrested by P.S.I. Shri Panchal (P.W.No.10) and looking to the gravity of the offence, Mr.Panchal has handed over the investigation to Mr.Zala. Mr.Zala forwarded the seized muddamal to F.S.L. Accused No.2 meanwhile prayed that, being the owner of the car, possession of that car be handed over to him and under the orders of the Court, the possession of the car was handed over to accused No.2 as an interim arrangement in exercise of powers vested with the Court under the provisions of Section 454 of the Code of Criminal Procedure. 7. The original accused Nos.1 and 2 were charge-sheeted. However, accused No.3 was absconding and steps under Section 70 of the Criminal Procedure Code was undertaken so that warrant under Section 70 can be issued. Thereafter, the investigation was handed over to Police Inspector, Mr.Brahmbhatt, but before he could take any action, further investigation was handed over to Mr.Baburav Patil, A.C.P., CR.AJ/635/2004 12/155 ORDER (P.W.No.12). Meanwhile the original accused Nos.3 and 4 were arrested and they were charge-sheeted. 8. The Counsel appearing for the parties as well as learned A.P.P., has taken this Court through the evidence of number of witnesses. While appreciating the evidence, the learned trial Judge has divided them into different categories which is reflected in paragraph 7 of the judgment. The details of the oral as well as documentary evidence considered by the learned trail Judge is mentioned herein which would ultimately help the Court at the time of discussion. A-1 (Oral Evidence) Sr.No. No. of Witness Exh Name Particular 1. P. W. No.2 93 Novel Vovel Parmar Police Inspector, Dariapur Police Station. Complainant 2. P. W. No.3 98 Chandansinh Naransinh Rajput P.S.I. Dariapur Police Station. 3. P. W. No.4 99 Manuji Kanuji Rajput Constable of Boarder Wing 4. P. W. No.10 108 Jayanti Hiralal Panchal P.S.I. Dariapur Police Station. Investigating Officer CR.AJ/635/2004 13/155 ORDER Sr.No. No. of Witness Exh Name Particular 5. P. W. No.11 119 Lalubha Gopalsinh Zala P.S.I. Dariapur Police Station. Investigating Officer 6. P. W. No.12 121 Baburav Ramchandra Patil Assistant Police Commissioner, Investigating Officer. A-2 (Other Witnesses) Sr.N o. No. of Witness Exh . Name Particular 1. P. W. No.5 100 Kamlesh Kantilal Thakar Inspector, A.M.C. 2. P. W. No.6 102 Kantilal Shivram Patel Inspector, A.M.C. 3. P. W. No.7 103 Bhupendra Nandlal Shah Inspector, A.M.C. 4. P. W. No.8 104 Samsuddin Hussainmiyan Sheikh Father of accused No.2. A-3 (Panch Witness) Sr.N o. No. of Witness Exh . Name Particular 1. P. W. No.1 75 Pankajkumar Gandalal Chauhan Panch to the recovery of cartridges from the Maruti Fronty Car, so also, the Panch to recovery of muddamal recovered from the Satyam Society. B-Documentary Evidence CR.AJ/635/2004 14/155 ORDER Sr.N o. Exh. Particular Date 1. 76 Panchnama of recovery of cartridges from the Maruti Car 05/02/1993 2. 77 Panchnama regarding recovery of weapons from the Bungalow No.19, Satyam Society. 05/02/1993 3. 79 to 91 Slip bearing signatures of Panch and Police Inspector, Shri Parmar. 05/02/1993 4. 94 Complaint given by Mr.Novel Parmar, Police Inspector 05/02/1993 5. 101 Registration Form regarding assessment and tax collection of Ahmedabad Municipal Corporation. 19/02/1993 6. 105 Sanction for prosecution as per Section 39 of the Arms Act 05/01/1995 7. 110 Report of the Forensic Science Laboratory 19/04/1993 8. 111 Report of the Forensic Science Laboratory 06/03/1993 9. 113 Note of Dariapur Police Station regarding return of Maruti Fronty bearing G.C.B. 122 to accused No.2-Salim Samsuddin Sheikh. 31/05/1993 10 114 Report of the Forensic Science Laboratory 08/02/1993 11 115 Report of the Forensic Science Laboratory 06/02/1993 12 122 A letter written by Assistant Police Commissioner to Ahmedabad Municipal Corporation. CR.AJ/635/2004 15/155 ORDER 9. As mentioned earlier in the statement recorded by the learned trial Judge under the provisions of Section 313 of the Code of Criminal Procedure, the original accused No.1 denied all the allegations and incriminating part of evidence placed to him by learned trial Judge. However, after denying the allegations, the accused No.2 has stated in his qualifying statement that basically he is an estate-cum-auto broker. He had purchased car bearing Registration No.GCB-122 from one Gangadhar and the same was to be sold to original accused No.1 and had ultimately sold that car to accused No.1-Noor Mohmmed. So, during the interregnum period the car was with him and he has handed over the custody of the car to original accused No.1 on 04/02/1993. The car was sold at about 11:30 a.m. in the morning and accused No.1 was put to possession. He has admitted that he had applied to the Court to get the custody of the said car and in compliance of the orders passed by the Court, the car has been handed over to him and he CR.AJ/635/2004 16/155 ORDER is the owner of the car. The original accused No.3, who has been acquitted, taken a plea of false implication and denial. In the same way, accused No.4 in his statement under Section 313 of the Code of Criminal Procedure has stated that he is the owner of Bungalow No.19, Satyam Society but no weapons have been seized from that bungalow. At relevant point of time, he was in the District Central Jail, Bhuj-Kutchch, as he was detained under the PASA since 15/12/1992 and was released on 07/01/1994. He has also produced the copy of detention order. According to him, the weapons have been seized from a soap factory. In support of his say, accused No.4 has produced the copy of light bill of that part of the bungalow. As he was not in conscious possession of the bungalow, even then he has been falsely implicated is the say in nutshell of accused No.4. 10. In the present case, the prosecution mainly relies on the documentary evidence as well CR.AJ/635/2004 17/155 ORDER as oral evidence of six Police Officers. The other witnesses who have been examined to prove the ownership of the bungalow or the car, etc., have not supported the case of prosecution. In the same way, the Panchas in whose presence the muddamal articles were seized have also not supported the case of prosecution, but the Police Witnesses who had drawn the Panchnama or who had collected the documentary evidence, have proved the contents of the crucial documents viz., the Panchnama drawn in the compound of Dariapur Police Station regarding seizure of six live cartridges and seizure of other arms and ammunitions from Bungalow No.19 of Satyam Society. 11. The prosecution has placed certain circumstance to link the accused with the crime to establish the element of conspiracy or some understanding amongst the some of the accused persons for commission of the alleged crime. The learned Judge has enumerated the facts relied on CR.AJ/635/2004 18/155 ORDER by prosecution in paragraph 17 of the impugned judgment as under: i) That accused No.1 was arrested on 4/2/1993 in a drunken condition driving the Maruti Car and from that very car, six live cartridges were recovered at the instances of the accused No.1. ii) On the clue given by the accused No.1, a raid was carried out at Bungalow No.19 of Satyam Society and from that very Bungalow one A.K. 47 Rifle, three country-made pistols alongwith used and live cartridges were seized alongwith more than 120 Killograms of silver wire. iii) The Maruti Car involved in the crime which was driven by accused No.1 is of the ownership of accused No.2 and bearing registration No.GCB-122. iv) The Bungalow raided from which the prohibited arms were recovered is owned by original accused No.4-Mohmmed Rafik and he was in possession of that bungalow. CR.AJ/635/2004 19/155 ORDER 12. The finding recorded by the learned trial Judge that above four major facts have been established by the prosecution successfully by leading oral as well as documentary evidence and circumstances emerging from the evidence are sufficient to link the accused with the crime and this very finding is under challenge. 13. Mr.S.V.Raju, learned Counsel appearing for the original accused Nos.1 and 2 has submitted that the finding recorded by the learned trial Judge is based on incorrect appreciation of evidence as well as by drawing certain illegal assumptions. He has further submitted that recovery of six live cartridges from Maruti Car may be a result of planting done by the Police as on 5/2/1993 when the car was searched, the said car was in custody of Police and not in custody of accused No.1. This crucial fact has been missed from the mind of the learned trial Judge and therefore the accused No.1 ought not to have been linked with the recovery of the CR.AJ/635/2004 20/155 ORDER muddamal six live cartridges of .455 bore from the said car. At the most the accused No.1 was responsible for driving the said car in a rash and negligent manner on 4/2/1993 and one can reasonably infer that the car must have been searched or at least should have been searched on 4th instance. When it is the say of Police Witnesses examined by prosecution that the car as well as accused No.1 after its interception by Constable of Boarder Wing were handed over to local Police of Dariapur Police Station of Ahmedabad then the fact of seizure of any article on the very next date from that car would not make the person responsible, who was driving that particular vehicle on previous day. In the same way, the accused No.1 had no direct or indirect relation with Bungalow No.19 of Satyam Society which was searched by the Police. Only with a view to link the accused No.1 with the grave crime, his presence was shown with Police alongwith the member of raiding party and Panch Witnesses by prosecution. He has further CR.AJ/635/2004 21/155 ORDER submitted that when the Panchas have not supported the case of prosecution then the accused No.1 ought not to have been linked with the prohibited arms allegedly recovered from the Bungalow No.19, is also one of the argument made by Mr.Raju. He has also submitted that when the Police has tried to implicate the accused No.4 in the crime though he was under the orders of detention and that too in a jail located at 100 Kilometer then the entire case of prosecution ought to have been viewed with doubt and the accused Nos.1 and 2 are entitled to take advantage of that shadow of doubt. The muddamal cartridges allegedly recovered from the car on the clue given by the accused No.1, that is A1 to A6 would itself not fall in the category of prohibited arms or ammunitions. They were revolvers cartridges and the learned trial Judge has erred in linking the accused with the crime which is punishable for possession of prohibited arms or ammunitions. CR.AJ/635/2004 22/155 ORDER 13.1 Mr.Raju has taken me through the depositions of witnesses examined and he has made detailed submissions. The nutshell submission of Mr.Raju is that except the evidence that accused No.2 was driving the Maruti Car in a rash and negligent manner on 4/2/1993, he should not be held responsible for recovery of six cartridges from that car allegedly traced out by the Police on the next date. In a minor offence registered by the Dariapur Police Station, the accused could have been taken to the nearest Magistrate and there was no reason for the Police to keep the accused No.1 or car in custody. Nothing incriminating was found on 4/2/1993 when the car was intercepted and handed over to Mr.Zala, Police Inspector. If the Panchnama (Exh.77) is appreciated, it appears that there is no element of discovery of fact at all in the eye of law and the accused No.1 ought not to have been attributed to the knowledge or about the conscious possession of six cartridges. In no circumstance, the conscious possession can be CR.AJ/635/2004 23/155 ORDER presumed because it requires to be proved by the cogent evidence. Even, the Panchnama is read vis-à-vis the evidence of Police Officer, who had proved that Panchnama (Exh.77) it is alleged that the accused No.1 had shown the place from where the Officer had recovered six cartridges. There is no reference in the Panchnama that he cavity from where the cartridges were found and recovered was specially created. On the contrary, it emerges that the cavity was for the speaker which normally being fixed in a car. It is very likely that accused No.1 being driver of that car may not be aware about the cavity or presence of cartridges in that cavity. There was no history with the Police qua the accused No.1 and therefore there was no need to interrogate the accused No.1 by keeping him in custody since 4/2/1993 to 5/2/1993. So, this is a designed act of Police to implicate the accused No.1 in a serious offence. 13.2 The second point advanced by Mr.Raju is CR.AJ/635/2004 24/155 ORDER that accused No.1 either may be the driver of the Maruti Car or may be the intending purchaser. When it has come on record that the car was given to accused No.1 on or about 4/2/1993 then only he ought not to have been held responsible for internal design of the car. It appears that Dariapur Police had not sent the accused No.1 to the nearest hospital for giving blood sample etc., if he really made offence punishable under the Prohibition Act. It is clear that the Police was contemplating the serious case against some of the accused, including the original accused No.3 and accused No.1 was used to link the original accused No.3 in the crime. This very accused No.3 ultimately has been acquitted. It emerges from the evidence that the case of prosecution once was that Bungalow No.19 was in conscious possession of original accused No.3 and when he has been acquitted, the original accused No.1 ought not to have been linked with the crime