CR.A/944/2002 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 944 of 2002 WITH CRIMINAL APPEAL No. 149 of 2003 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 ? =================================== AMRATLAL BUDHARAMJI - Appellant Versus STATE OF GUJARAT - Opponent =================================== CR.A/944/2002 2/38 JUDGMENT Appearance : CRIMINAL APPEAL NO. 944 OF 2002 MR RAJESH M AGRAWAL for Appellant. MR KT DAVE, APP for Opponent. CRIMINAL APPEAL NO. 149 OF 2003 MR E E SAIYED for Appellant. MR KT DAVE, APP for Opponent. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 24/01/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. These two appeals are filed by the appellants, namely, Amratlal Budharamji and Fakirmohmmad Piruji Mansuri – original accused Nos. 2 & 1 respectively, against the same judgment and order dated 23.09.2002 passed in Sessions Case No. 79 of 2001 by the learned Additional Sessions Judge, Court No. 10, Ahmedabad and since both the appeals are heard together, the same are being disposed of by CR.A/944/2002 3/38 JUDGMENT this common judgment. 2. Criminal Appeal No. 944 of 2002 is filed by the appellant – original accused No. 2 challenging the correctness, legality, validity or propriety of his conviction under Section 8 (c) read with Section 21 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) and sentence of 10 years R.I. And to pay a fine of Rs. 1 Lac and in default thereof, further to undergo R.I. for two years. 3. Similarly, Criminal Appeal No. 149 of 2003 is filed by the appellant – original accused No. 1 i.e. Fakirmohmmad Piruji Mansuri against the very judgment dated 23.09.2002 passed in Sessions Case No. 79 of 2001 by the learned Additional Sessions Judge, Ahmedabad convicting him under Section 8 (c) read with Section 21 & 29 of the Act and sentencing him to undergo R.I. for 10 years and fine of Rs. 1 Lac and in default thereof, further to CR.A/944/2002 4/38 JUDGMENT undergo R.I. for two years. 4. The brief facts as emerged from the complaint and revealed during the course of trial are as under :- The complainant, Mr. B.M. Rajvanshi, Police Inspector, CID Crime, Gujarat State, on 03.03.2001 at about 10.50 a.m. was at his home at Ambavadi, Ahmedabad. At that time, he received the secret information and at about 11.00 a.m. he left his home and reached Gandhinagar at 11.40 a.m. and secret information was noted in information register at 11.50 a.m. Thereafter, he came to Meghaninagar, Ahmedabad and after following the necessary procedure, he along with the members of raiding party and Panchas reached to the place of information and kept watch there and at about 2.20 p.m. on getting signal from the informant, they stopped two persons who were coming from VIP gate towards Kalu Bawa Saiyedji mosque and they both were stopped near Cochin depo gate and they were taken to open space near railway station and after CR.A/944/2002 5/38 JUDGMENT following necessary procedure, they were searched. While searching the accused No. 1, one packet tied on his left thigh was found and it was found brown sugar weighing about 520 Grams. On personal search of the accused No. 2, no incriminating material was found. After following necessary procedure, the same was seized under the Panchnama and the samples were taken and accused Nos. 1 & 2 both were arrested and were taken to the Police station. Mr. B.M. Rajvanshi, PI, CID Crime gave a complaint and the offence was registered and investigation was further started and after completion of the investigation, the police submitted charge-sheet in the City Sessions Court, Ahmedabad which was registered as Sessions Case No. 79 of 2001. 5. 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 Additional Sessions Judge, Ahmedabad CR.A/944/2002 6/38 JUDGMENT in Sessions Case No. 79 of 2001. 6. To prove the culpability of the accused, prosecution has in all examined as many as 4 witnesses. Prosecution has also produced several documents and relied upon the contents of the same. After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Ahmedabad 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. 7. On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Additional Sessions Judge, Ahmedabad has held that the prosecution has established beyond reasonable doubt that the charge levelled against CR.A/944/2002 7/38 JUDGMENT the accused were proved and, therefore, the accused Nos. 1 & 2 were found guilty of the offence punishable under Section 8 (c) read with Section 21 & 29 of the Act and the appellants – original accused Nos. 1 & 2 were found guilty for the offence punishable under Section 8 (c) read with Section 21 & 29 of the Act and were sentenced to suffer R.I. for 10 years and to pay fine of Rs. 1 Lac each and in default of payment of fine, further to suffer R.I. for two years each. 8. Being aggrieved and dissatisfied with the said judgment and order dated 23.09.2002 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 79 of 2001, the appellants – original accused Nos. 1 & 2 have preferred these two appeals separately before this Court under Section 374 of the Code of Criminal Procedure. 9. Mr. R.M. Agrawal, learned advocate appearing for the appellant – accused No. 2 in Criminal Appeal No. CR.A/944/2002 8/38 JUDGMENT 944 of 2002 has taken us through the oral as well as documentary evidence which are on record and also assailed the judgment and order of the learned Additional Sessions Judge, Ahmedabad dated 23.09.2002. He has submitted that the learned Additional Sessions Judge has erred in convicting the appellant – accused No. 2 though there was no cogent or adequate evidence showing his guilt in the matter. He has further submitted that the learned Additional Sessions Judge has failed to appreciate that the appellant is innocent and has not committed the alleged offence. Even as per the case of the prosecution, the appellant – original accused No. 2 was found only in the company of the co-accused No. 1 from whose possession, the alleged brown sugar was found and when the search of the present appellant – accused No. 2 was made, nothing incriminating was found from his possession. He has further submitted that there was no iota of evidence at all against the appellant – accused No. 2 connecting him with the alleged commission of offence by original accused No. 1 from whose CR.A/944/2002 9/38 JUDGMENT possession brown sugar weighing about 520 Grams was found. Despite this fact, the learned Additional Sessions Judge, in flagrant violation of the principles of evaluation and appreciation of evidence in criminal trial, arbitrarily and capriciously convicted and sentenced the appellant – orig. accused No. 2 basing her conclusion only on assumption, presumption, surmises and conjectures, though there is no legal evidence at all connecting the appellant – orig. accused No. 2 with the alleged commission of offence. Merely on the basis of presence of the appellant – orig. accused No. 2 with or in the company of accused No. 1 without any legal, reliable and clinching evidence against the appellant – orig. accused No. 2 connecting him with the alleged commission of offence, the appellant – orig. accused No. 2 could not have been convicted and sentenced. He has further submitted that unlawful possession of the contraband articles is sine-qua-non for the offence under the Act and admittedly, as per the case of the prosecution, the appellant – orig. accused No. 2 was not found in CR.A/944/2002 10/38 JUDGMENT possession of any contraband and when it is so, then there is no question of his unlawful possession of the contraband and so there is no question of convicting him for the offence punishable under Section 21 & 29 of the Act and sentencing him for the same. There is no iota of evidence at all against the appellant – orig. accused No. 2 for the offence under Section 29 of the Act regarding abetment and criminal conspiracy and so far as the question of abetment is concerned, not a single ingredient of Section 107 of IPC regarding abetment is proved and not a single ingredient under Section 120-B of IPC regarding conspiracy is proved. Inspite of this clear position, the learned Additional Sessions Judge, Ahmedabad has convicted and sentenced the appellant – orig. accused No. 2. As per the case of the prosecution, the appellant – orig. accused No. 2 was found in the alleged company of accused No. 1 and from the place where the accused No. 1 was found in possession of contraband brown sugar, both the appellants were taken to Kalupur so that there might not be any traffic hindrance at the place CR.A/944/2002 11/38 JUDGMENT where they were stopped and at Kalupur, panchnama was prepared and if the evidence adduced by the prosecution is examined, then one thing becomes very clear that the evidence led by the prosecution is very silent as to exactly the appellant – orig. accused No. 2 was doing what and how he was connected with the alleged commission of offence by accused No. 1. The evidence collected by the prosecution stopped short by stating that the appellant – orig. accused No. 2 was in the company of accused No. 1 and more over, if the evidence on record is taken into consideration, then also it becomes manifestly clear that the evidence did not attribute any overtact whatsoever to the appellant – orig. accused No. 2. No iota of evidence is produced by the prosecution in order to conclusively link the appellant – orig. accused No. 2 with the contraband articles allegedly to be possessed by the original accused No. 1. 10.In support of his submission, Mr. Agrawal relied on CR.A/944/2002 12/38 JUDGMENT the decision of this Court rendered in Criminal Appeal No. 278 of 2003 with 284 of 2003 decided on 10.10.2006 wherein after considering the various judgments of the Hon'ble Supreme Court, this Court has held that no evidence has come on record which would establish beyond reasonable doubt that the accused in that case was aware about the fact that the accused are having the contraband articles. This Court has further held in that case that simply because the accused No. 3 was accompanying the accused Nos. 1 & 2 and simply because his name was found in the information so received by the concerned Police Officer, it cannot be proved beyond reasonable doubt that the accused No. 3 was aware about the fact that the accused Nos. 1 & 2 were carrying Muddamal contraband articles with them and that he has abetted the accused Nos. 1 & 2 in commission of the alleged offence. 11.Based on the aforesaid factual background and the legal propositions laid down by the Hon'ble Supreme CR.A/944/2002 13/38 JUDGMENT Court as well as this Court, Mr. Agrawal has strongly urged that no case was made out against appellant – orig. accused No. 2 and he may be acquitted from the charge of offence levelled against him and released forthwith. 12.Mr. E.E. Saiyed, learned advocate appearing for the appellant – orig. accused No. 1 in Criminal Appeal No. 149 of 2003 has submitted that the appellant is from hindi knowing and speaking State, unaware of the language of the Trial Court and as such, the trial must be in the language known to the appellant and this lacuna is fatal to the case of the prosecution and benefit of doubt ought to have been given to the accused No. 1. The evidence, if read as a whole or in part thereof, is absolutely silent about compliance of Section 50 of the Act. Section 50 of the Act confers very important right on the accused and even the slight violation thereof vitiates the whole trial. There is nothing on record that the choice as suggested in Section 50 was given in writing to the appellant – CR.A/944/2002 14/38 JUDGMENT orig. accused No. 1 and thus the entire trial is vitiated. The mandatory provisions of Sections 55, 57 & 42 were clearly violated by the prosecution and hence, benefit of doubt should have been given to the appellant – orig. accused No. 1. He has further submitted that one Police Constable Mr. Vinod Dantani and the panch witnesses are from the same community and, therefore, the evidence should have been considered from that angle. The accused and muddamal articles were moved from Gandhinagar to Meghaninagar and during this journey, the muddamal was unsafe and, therefore, the muddamal which was attached and sent to chemical analysis were not one and the same and it creates reasonable apprehension and doubt about tampering. The panch witness had admitted in his cross-examination that the documents were prepared by sitting in the office which itself goes against the prosecution. No evidence of witness from Dharmashala was recorded. CR.A/944/2002 15/38 JUDGMENT 13.Mr. Saiyed has further submitted that if the principles laid down by the Hon'ble Supreme Court in the case of State of Punjab V/s. Baldevsingh, 1993 (3) Crimes 147 SC are taken into consideration, then it becomes crystal clear that there is flagrant violation of Section 50 of the Act and when it is so, then the conviction recorded only on the basis of the possession of contraband articles recovered from the person of the appellant – orig. accused No. 1 during search cannot be relied upon at all and on this ground alone, the alleged recovery of the contraband article is rendered suspicious and conviction and sentence based thereon stands vitiated. Moreover, there is no evidence at all to come to the conclusion that there is compliance of Section 50 of the Act. Moreover, there is also no evidence at all that existence of right of the accused to be searched before a Gazetted Officer or a Magistrate was brought to his notice and when it is so, then it is clear that there is clear violation of Section 50 of the Act and as a result thereof, CR.A/944/2002 16/38 JUDGMENT prejudice is caused to the appellant – orig. accused No. 1 and as a result thereof, failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate may render recovery of contraband articles suspicious and conviction and sentence based thereon is bad and unsustainable in law. 14.Mr. Saiyed has further submitted that there is clear violation of Section 57 of the Act. The full report of all the particulars of arrest and of seizure will have to be made within 48 hours next after such arrest or seizure by the Seizing or Arresting Officer to his immediate official superior. The word used in Section 57 is immediate official superior. Admittedly, in this case, complainant Mr. Rajvanshi has not made report under Section 57 of the Act to his immediate official superior and when it is so, conviction and sentence is bad and unsustainable in law and moreover, it can never be said that Section 57 of the Act is complied with at all. CR.A/944/2002 17/38 JUDGMENT 15.Mr. Saiyed has further submitted that there is flagrant violation of Section 55 of the Act. Admittedly, as per the case of the prosecution, PSO has not taken charge and has not kept in his safe custody the articles seized and moreover, PSO has not taken charge and has not kept in his safe custody the articles seized and moreover, PSO has not affixed his own seal on such article and when it is so, then there is violation of Section 55 of the Act. Moreover, if the prosecution evidence is scanned, it also becomes clear that there is no evidence on record at all that from whom seal which was used for affixing seals on the samples and contraband article was taken and after its use to whom it was handed over or returned till the sample reached the FSL Ahmedabad for analysis. Moreover, there is also no evidence on record that subsequent seal which was affixed on the samples and contraband article was affixed in any muddamal register. There is also no evidence that the forwarding letter was prepared on CR.A/944/2002 18/38 JUDGMENT the spot where the contraband was seized and seal which was used on the sample and contraband was also affixed on the forwarding letter. There was also no evidence to show that the specimen seal was deposited with PSO along with samples and muddamal when the same was handed over to PSO and when there is no evidence of this type, it can certainly be said that there is flagrant violation of Section 55 of the Act. All these precautions are necessary to avoid possibility of tampering with the contents of samples. 16.Mr. Saiyed has further submitted that P.W. 1 – Jivanbhai Mohanbhai Patni who is a panch witness of the panchnama of seizure and who resides at Shahibaug has not supported the case of the prosecution and is declared hostile and according to the learned Additional Sessions Judge, the said witness to some extent supported the case of the prosecution in cross-examination by the prosecution and so also, the learned Additional Sessions Judge CR.A/944/2002 19/38 JUDGMENT has believed his evidence though the evidence of the said witness ought to have been discarded in toto. The another panch of the said panchnama has not been examined by the prosecution and it was the duty of the prosecution to examine another panch when one panch has not supported the case of the prosecution and is declared hostile. Inspite of this position, the learned Additional Sessions Judge believed his evidence by assigning arbitrary and capricious reasons and thus in this case, evidence of other police officer and police personnel P.W. Nos. 2,3 & 4 is not corroborated by the evidence of P.W. No. 1 panch witness. It is further submitted that when the evidence of the police personnel P.W. Nos. 2,3 & 4 is not corroborated at all by the evidence of P.W. No. 1, then under these circumstances, the evidence of Police Officer if the Court wants to believe then it should be of a “sterling quality”. If the evidence of P.W. Nos. 2,3 & 4 is closely scrutinized then it becomes clear that by no stretch of imagination or reasoning, it can be said that their evidence is of sterling worth. P.W. No. 2 Mr. CR.A/944/2002 20/38 JUDGMENT Rajvanshi has also shown his ignorance about the maintenance of the Information Register by whom and in whose possession, it remained and regarding seal and from whom the same was taken and with whom it remained and there is also material contradiction and omissions in the deposition of P.W. No. 2 – Mr. Rajvanshi. Moreover, evidence of P.W. Nos. 3 & 4 is also not of sterling quality. The same is also full of material contradictions and omissions and moreover, person who is not authorised has kept the samples in his custody. Moreover, there is no sufficient evidence as to what precautions were taken to avoid tampering with the contents of the sample and how and in what manner, the same was kept in proper and safe custody. There is no necessary corresponding entries in any register to the effect that the same was deposited and when the same was brought out and by whom the same was handed over to another Police Officer and for want of this type of evidence, no reliance at all can be placed to the effect that the samples and muddamal were kept in proper and safe custody till the samples CR.A/944/2002 21/38 JUDGMENT reached in FSL office and consequently no reliance can be placed on the report of the FSL. 17.Over and above the aforesaid oral submissions, Mr. Saiyed has also filed written submissions. This written submissions are in respect of the violation of the provisions contained in Sections 50, 52 & 55 of the Act as well as journey of the muddamal and discrepancies found in the evidence of the prosecution witnesses, more particularly, the evidence of Shri Rajvanshi. Along with this written submissions, Mr. Saiyed has annexed a copy of the judgment of the Hon'ble Supreme Court in the case of Valsala V/s. State of Kerala, JT 1993 (4) S.C. 549, wherein the seized article was produced in the Court after three months and no evidence was shown as to with whom the seized article was lying and whether it was sealed. Article seized was not in proper custody and proper form. The Court has found that there was inordinate delay and missing link and, therefore, the Court held that the evidence CR.A/944/2002 22/38 JUDGMENT adduced are wholly insufficient to conclude that what was seized from the appellant alone was not sent to the chemical examination. The Court further held that though this is purely a question of fact, this is an important link. Both Courts below have not examined this aspect in a proper perspective. The Court further held that no doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the Court cannot convict. The Court, therefore, set aside the conviction and sentence. 18.Mr. Saiyed has further annexed a copy of the judgment in the case of State of Rajasthan V/s. Daulat Ram, 1980 Criminal Law Cases 170 wherein it is held that it is an admitted case of the prosecution that the samples changed several hands before reaching the public analyst. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period. This CR.A/944/2002 23/38 JUDGMENT fact will have to be proved affirmatively by the prosecution. The Court further held that this is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium upto the time when the samples were handed over to the public analyst, the seals remained intact. The onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps or lacuna left at the trial, at the appellate or revisional stage. 19.Mr. Saiyed has also produced a copy of the judgment of the Hon'ble Supreme Court in the case of K. Mohanan V/s. State of Kerala, (2000) 10 S.C.C. 222 wherein it is held that before subjecting a person to search, the officer concerned must inform him of his right to be searched before a Gazetted Officer or a Magistrate and failure to do so, would cause prejudice to such person. It is further held that whether before conducting the search, the CR.A/944/2002 24/38 JUDGMENT Police Officer concerned merely asking the appellant – accused whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search but not informing about his right in that behalf