IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 133 of 2000 with CRIMINAL APPEAL No 248 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE R.P.DHOLAKIA and HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 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? -------------------------------------------------------------- ISMAIL ADAM MITHA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 133 of 2000 MR HARIJINDAR SINGH for MR RAMNANDAN SINGH for for Appellant MR IM PANDYA, APP for Respondent 2. Criminal Appeal No. 248 of 2000 MR IM PANDYA, APP for Appellant MR HARIJINDAR SINGH FOR MR RAMNANDAN SINGH for for Respondent Nos.1 and 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA and HON'BLE MR.JUSTICE SHARAD D.DAVE Date of decision: 19/08/2004 COMMON C.A.V. JUDGEMENT (Per : HON'BLE MR.JUSTICE R.P.DHOLAKIA) Criminal Appeal No.133 of 2000 under Sec.374 of the Code of Criminal Procedure ('the Code' for short) is directed against the judgment and order of conviction and sentence dated 4-2-2000 passed against the present appellant by the District and Sessions Judge, Bharuch, in Sessions Case No.145 of 1995 whereby the appellant Ismail Adam Mitha (Tailor) @ Deka, resident of Sitpon, Taluka and District Bharuch, has been convicted for the charge under Sec.21 read with Sec.22 of the Narcotic Drugs and Psychotropic Substances Act ('the Act' for Short) and sentenced to suffer 11 years R.I. with fine of Rs.2.00 lakhs in default to suffer two and half years more R.I. 2. Criminal Appeal No.248 of 2000 under Sec.378 (1)(3) of the Code preferred by the State of Gujarat is directed against the judgment and order of acquittal dated 4-2-2000 passed by the District and Sessions Judge, Bharuch, in Sessions Case No.145 of 1995 whereby the original accused No.2-Aminaben, wife of Ismail Adam Mitha (Tailor) @ Deka and the original accused No.5-Ibrahim Malangminya Shaikh were acquitted of the charges levelled against them. However, no appeal was preferred against the judgment and order of acquittal passed against the original accused Nos.3,4 and 6. 3. Initially, while admitting the appeals, this Court (Coram: M.S.Parikh & H.H.Mehta,JJ) vide order dated 21-2-2000 directed for expedite hearing of the appeals. Thereafter, this Court (Coram: D.K.Trivedi & M.S.Shah,JJ.) vide order dated 19-9-2003 passed in Cri.Misc.Appln.No.7143 of 2003 in Criminal Appeal No.133 of 2000 ordered for hearing of both these appeals together. 4. Both these appeals were listed before us in the middle of June, 2004. We have given priority to these appeals and started hearing learned counsels appearing for the respective parties. As common facts and law arise in both these appeals which had arisen out of a common judgment and order, we are deciding both these appeals together by way of a common judgment. 5. The case of the prosecution is that on 25-6-1995, one Shri Abhesinh Devisinh Chudasma serving as a Deputy Superintendent of Police, Ankleshwar, District Bharuch, received a secret information at 4.00 a.m. that one Ismail Adam Mitha (Tailor) @ Deka, resident of Sitpon, Taluka and District Bharuch, was keeping narcotic substance like brown sugar in his occupation and possession at the bungalow situated at Sitpon and was engaged in the said illegal business of buying and selling as well as importing and exporting the said narcotic substance in the international market. He was also dealing in the illegal business of deadly weapons and ammunition. Said information was conveyed to Superintendent of Police, Bharuch, and thereafter he along with CPI, Ankleshwar, Shri K.R.Parmar, Reader PSI, Zala, N.D.Dodiya, Gurudeshwar PSI and other police personnel went to Nabipur Police Station at about 7.00 a.m. where PSI, Nabipur Police Station, was given to understand that a raid was to be carried out and he instructed to call panchas and weighing person. Necessary information was given to post the said entry in the Station Diary and it was entered in the Station Diary by Dy.S.P., Mr.Chudasma. Written intimation as regards this information was given to the District Superintendent of Police. On arrival of panchas and weighing person, when they were given to understand about this, they showed willingness to act such and hence, after preparing primary panchnama, raiding party consisting of Police personnel, panchas and weighing person proceeded towards Sitpon Village. Upon reaching there, they entered into Unda Faliya area where the house of Ismail Adam Mitha is situated. The said house had a big compound wall and by opening the gate, they entered into the compound. When they knocked at the door, a person opened the door from inside and on being asked stated his name to be Ismail Adam Mitha (Tailor) Deka. Dy.S.P., Mr.Chudasma and others informed him that as they received an information of his dealing in narcotic substance, deadly weapons and ammunitions, a search was to be carried out in the said house. He was asked about his valuable right of search. He stated of not having any objection if search is to be conducted in presence of police and panchas. When police personnel with panchas and weighing person conducted a search on said Ismail Adam Mitha, nothing incriminating was found. In the kitchen of the said house, one lady was seen and on being asked stated her name to be Aminaben, wife of Adam Ismail Mitha @ Deka. Thereafter, search was conducted on the ground floor portion of the said house. After completion of search on the ground floor, nothing incriminating was found. Thereafter, they went on the upper floor of the house through staircase and reached in one A/c room situated on the western side. During the search in said room, they found one grey colour zip bag (thelo) hidden beneath the bed on the pillow portion having two pockets, one of which was having chain. On the upper side portion of the said bag, one plastic bag was found. In the said plastic bag, there was one cloth bag stitched on three sides by sewing machine whereon, in all, seven illegible rubber stamps in blue ink in some Arabic like and English language were affixed along the stitched portion and the middle. On the otherside of the said bag, there was some writing in green colour in Arabic like language which appeared to them to be of some powder like substance filled in it. Upon break opening the front side stitched portion of the said cloth bag, one plastic bag was found. On opening the same, one another paper bag duly packed containing powder substance filled in it was found. They could not ascertain the substance found therein on being smelt but they guessed that to be of some narcotic substance. Photographs of the said proceedings were taken. Hence, police personnel categorically asked the accused No.1 as to whether he did hold the licence, permit or authority to keep the said narcotic substance. He stated of not having the same. Thereafter, request was made to Yusufbhai Ahmedbhai Banglawala, who was present there as weighing person, to carry out the weight and it was found to be weighing 1 kg. and 10 gms. From the said packets, two samples each of 10 gms. of the above substance were taken and kept in separate boxes in presence of accused and raiding party and kept in a cotton cloth and stitched with the string. Slip signed by the Police officers and panchas was put on it and seal in the name of PSI, Nabipur Police Station in English was applied on both the samples. Similarly seals were applied on the cloth bag containing remaining substance weighing 990 gms of substance. Arrangements were made for sending the samples to FSL. The value of the substance caught was assessed to be Rs.1.00 crore in the international market. Search was conducted on the remaining portion of the first floor also. However, no incriminating articles were found. Thereafter, they went to the terrace wherein also, no incriminating articles were found. Upon conducting search in the garden also, nothing incriminating was found. Thereafter, muddamals were taken into custody for the purpose of investigation and second part of panchnma was completed on the spot. Signatures of panch witnesses and Police Officers i.e. Dy.S.P., Mr.Chudasma, CPI, Mr.Parmar of Ankleshwar and PSI, Mr.Barad of Nabipur Police Station were taken on each page. On behalf of the State, complaint was prepared and signed by Mr.Barad, PSI of Nabipur Police Station in which Dy.S.P., Ankleshwar also put his signature as "before me". It was signed by CPI, Ankleshwar also. Yadi was prepared by Dy.S.P., Mr.Chudasma directing the concerned authority to hand over further investigation to CPI, Mr.Parmar. During the course of investigation, both these persons were arrested informing them about the same in writing and completing all required formalities. The offences punishable under Secs.8(c), 21, 22, 23 and 29 of the Act were registered against the accused Nos.1 and 2 i.e. Ismail Adam Mitha (Tailor) @ Deka and Aminaben, wife of Ismail Adam Mitha, as Nabipur Police Station C.R.No.II-73 of 1995 on 25-6-1995. Both these accused were produced before the concerned Court on 26-6-1995 where remand was sought for which was granted for 10 days. 5.1 During interrogation of both these accused on 27-6-1995, accused-Ismail Adam Mitha voluntarily offered himself to show other substances of similar nature kept by him. Therefore, panchas were called by Mr.Parmar through PSI, Nabipur Police Station, and they were given to understand to remain as panchas and were introduced to the accused. After completion of all other formalities regarding writing of primary panchnama, etc. Dy.S.P., Mr.Chudasma, I.O. Mr.Parmar, panchas and other members of the raiding party left Nabipur and went along the way shown by the accused and reached Unda Faliya Bungalow situated at Sitpon where all of them got down. Thereafter, Ismail Adam Mitha led the raiding party with panchas to backside portion of osri and pointed his finger towards the place on the ground. Said place was dug with the help of 'trikam' (an agricultural instrument used for digging) and spade. From the said place, one big gunny bag like urea fertilizer bag in white colour was found. On opening the said bag, 4 rexin bags containing filled with some powder like substance were found. Two of these four bags were applied with prime colour cello-tape. Thereafter, these bags were opened in presence of panchas and members of raiding party and brown colour powder having the smell of brown sugar was found. The same was weighed by Shri Usuf Ahmed Banglawala, person who weighed the muddamal in the first raid. First bag was found to be weighing 1 kg. and 50 gms., second bag 1 Kg. and 60 gms, third kakhi bag 990 gms and fourth kakhi plastic bag 970 gms. and cello-tape was also taken. From all these four bags, samples weighing 10 gms. from each bag by tearing one side of the bag were taken, prepared a separate plastic small bag for putting said samples and kept in galvanizing small tin and packed in plastic bags wrapped on paper and stitched in cloth. Slip duly signed by the panchas and police officers was affixed and seal in the name of PSI, Nabipur Police Station in English was also affixed on those four samples. The packets containing remaining powder were stitched in the respective bags whereof slip duly signed by the panchas and police officers was affixed and seal of PSI, Nabipur Police Station, was applied separately and kachha receipt was issued to the accused as regards said muddamal and signatures of accused were obtained. Second part of the panchnama was drawn there on the spot in presence of panchas and members of raiding party which was duly signed by the panchas and police personnel. Photographs of the proceedings were also taken. Arrangements were made for sending the samples to FSL. 5.2 During further interrogation, since it was revealed that he had received the stock of brown sugar from Ibrahim Malek Shaikh of Yakubpura, Vadodara, said Ibrahim was arrested on 16-7-1995 and on 17-7-1995 during further interrogation of said Ibrahim, he voluntarily offered to show other stocks of brown sugar kept by him. Therefore, panchas, weighing person and photographers were called to Nabipur Police Station by PSI, Mr.Barad. Keeping all the sealing materials and instruments with them, the Investigating Officer, panchas, photographers and weighing person and another police personnel decided to proceed in the Govt. vehicle parked in the compound of Nabipur Police Station. The accused-Ibrahim sat near the driver's seat while other police personnel, panchas, weighing personnel and photographers were also seated. Prior to that, primary panchnama was drawn. Thereafter, they started from Nabipur and reached Lalji Masjid in Vadodara where vehicle was stopped as per the say of the accused. Upon getting down from the jeep, the accused, showing the board of Smart Tailors stated that the shop closed with lock is his shop. The accused gave key of said shop to police Constable, Nareshbhai, who had opened two big locks and the accused with other members of the raiding party went inside. The accused took one packet of grey colour from the drawer of the cutting table in which two rexin packets duly stitched were found which when weighed through weighing person were found to be weighing 1 kg. and 150 gms. each. The price of each packet is assessed to be Rs.1.00 crore in the international market. On tearing one corner of the packet, brown colour powder filled therein could be seen therefrom which the police personnel and panchas found to be the contraband article. Thereafter, two samples of 5 gms. each were taken from them which were packed in small plastic bags wrapped with paper and put in a cloth. The slip signed by panchas and police officers was attached to it and tied with string wherein seal of PSI, Nabipur Police Station, in English was put on it and taken the muddamal into custody. Remaining powder was weighed and each packet was found to be weighing 1 kg. and 140 gms. As aforesaid, slip duly signed by the panchas and police officers was applied on front side and back side. All formalities of sealing were completed and taken them in custody. Photographs of the proceedings were also taken. Both the sample packets put in galvanizing small tins were packed in the plastic bag on which paper was wrapped and put in cloth. Arrangements were made for sending the samples to FSL and keeping rest of the muddamal in proper custody after obtaining permission from the Court. 5.3 During the course of investigation, names of accused Nos.3,4 and 6 were also revealed and they were accordingly arrested, interrogated and sent to judicial custody. After completion of investigation, the present appellant and other accused were charge-sheeted. Thereafter, learned District and Sessions Judge, Bharuch framed charges against the accused. The accused Nos.1 and 2 were charged under Secs.8(c), 21, 22, 23 and 29 of the Act. The accused No.2 was also charged alternatively under Sec.25 of the Act. The accused Nos.3, 4 and 6 were charged under Secs.8(c), 21,22,23 and 29 of the Act while accused No.5 was charged under Secs.8(c), 21, 22, 23 and 29 of the Act. Charges were read over and explained to the accused. They pleaded not guilty to the same and claimed to be tried. 5.4 The prosecution examined, in all, 26 witnesses namely, Yusufbhai Ahmedbhai Banglawala, the person who weighed muddamals in all the three raids, as P.W.No.1 at Ex.37; Gulambhai Ibrahimbhai, servant of accused No.1 as P.W.No.2 at Ex.43; Mahmad Umarji Patel, relative of accused Nos.1 and 2 as P.W.No.3 at Ex.44; Amratlal Chunilal Soni, goldsmith as P.W.No.4 at Ex.45; Dineshbhai Ramanbhai Sodagar, photographer of the first search and seizure dated 25-6-1995 as P.W.No.5 at Ex.46; Rahulbhai Ramanbhai Sodagar, photographer of the 3rd search and seizure carried out on 17-7-1995 at Vadodara at the instance of accused No.5 as P.W.No.6 at Ex.47; Ahmedbhai Valibhai, neighbour of accused Nos.1 and 2 as P.W.No.7 at Ex.48; Chhitubhai Mahendrabhai Vanza, relative of accused-Pankajbhai and as per the say of prosecution he went to the house of accused No.1 on 19-6-1995 along with Pankajbhai Chandubhai Dorawala as P.W.No.8 at Ex.49; Mariyaben Homnik, receptionist of Hotel King, Bombay, as P.W.No.9 at Ex.51; Ismailbhai Ibrahimbhai Pathan, owner of Hotel City Palace, Vadodara, as P.W.No.10 at Ex.53; Abdulbhai Mohanbhai, Manager of Hotel City Palace, Baroda, as P.W.No.11 at Ex.55; Kantibhai Kevarbhai, panch of panchnama Ex.65 regarding search and seizure of house of accused Nos.1 and 2 dated 25-6-1995 as P.W.No.12 at Ex.61; Yakub Valibhai Patel, Head Constable of Nabipur Police Station who went to FSL, Ahmedabad, for handing over the muddamal, as P.W.No.13 at Ex.66; Shanabhai Abhesinh, panch of panchnama of 2nd search and seizure taken place in the house of accused Nos.1 and 2 at Sitpon on 27-6-1995 as P.W.No.14 at Ex.70; Ashokbhai Lallubhai Patel, panch of 3rd search and seizure dated 17-7-1995 carried out at the instance of accused No.5 at his shop Smart Tailor at Vadodara as P.W.No.15 at Ex.86; Chaturbhai Jesangbhai, panch of panchnama of 3rd search and seizure of preliminary analysis by the FSL officer at Nabipur Police Station as P.W.No.16 at Ex.94; Fatesinh Gumanbhai, 2nd panch of above referred panchnama dated 18-7-1995 for preliminary analysis of the muddamal seized in 3rd raid from Vadodara as P.W.No.17 at Ex.98; Shivabhai Dhanjibhai, Head Constable of Nabipur Police Station, who took muddamal to FSL, Ahmedabad, as P.W.No.18 at Ex.100; Mahipatsinh Nathubawa, Head Constable, Nabipur Police Station, who took muddamal to FSL, Ahmedabad, on 27-6-1995 and through him, prosecution has proved receipt Ex.107 issued by FSL, Ahmedabad, dated 27-6-1995 as P.W.No.19 at Ex.106; Nareshkumar Jorabhai, Writer Head Constable of CPI, Ankleshwar, member of the raiding party and search and seizure process of 3rd raid at Vadodara on 17-7-1995 as P.W.No.20 at Ex.110; Rajendra Amrutlal, Head Constable, Nabipur Police Station, who handed over the muddamal to FSL on 29-6-1995 as P.W.No.21 at Ex.118; Udesinh Barad, who at the relevant time was working as PSI, Nabipur Police Station, as P.W.No.22 at Ex.121; Daudbhai Rehmanbhai, Manager of shop No.A-5 situated in Lalji Kui as P.W.No.23 at Ex.125; Abhesinh Devisinh Chudasma, Dy.S.P., Ankleshwar Division, District Bharuch, who has received secret information and who led the raiding party to Sitpon, Taluka and District Bharuch at the residence of accused Nos.1 and 2 as P.W.No.24 at Ex.169; K.G.Sadhwani, S.D.O. Telephone Department through whom prosecution tried to prove the receipt of information over telephone No.272 installed at the house of accused No.1 at Unda Faliya as P.W.No.25 at Ex.175 and K.R.Parmar who was CPI, Ankleshwar Division at the relevant time and member of raiding party in all the three raids and who was the I.O. of Nabipur Police Station C.R.No.II-73 of 1995 as P.W.No.26 at Ex.188. Thereafter, the prosecution submitted the closing pursis. 5.5 The defence examined Mr.Bakulbhai Jivabhai Patel, Bharuch reporter of a Gujarati vernacular daily "Gujarat Samachar", as D.W.No.1 at Ex.251. 5.6 The prosecution submitted a list of documents, the important ones being the information received by Dy.S.P., Mr.Chudasma reduced in writing Ex.189; Station Diary entry dated 25-6-1995 Ex.122/189; confidential letter dated 25-6-1995 written by Dy.S.P., Mr.Chudasma to D.S.P., Bharuch Ex.170; panchnama of search and seizure dated 25-6-1995 Ex.65; the complaint filed by PSI, Barad of Nabipur Police Station on behalf of State Ex.304; Yadi by Dy.S.P. addressed to Officer-in-charge of Nabipur Police Station handing over investigation to CPI, Mr.Parmar Ex.171; panchnama of second raid carried out at Sitpon Village in the house of accused No.1 on 27-6-1995 Ex.71; receipt issued by Weighingman, Mr.Yusuf Banglawala for all the three raids dated 25-6-1995, 27-6-1995 and 17-7-1995 Exs.38, 39 and 40 respectively; FSL receipts Exs.67, 101, 107; panchnama of third raid dated 17-7-1995 at Vadodara in the tailoring shop of accused No.5 at Ex.87; FSL report for primary analysis of muddamal seized vide panchnama Ex.87 at Ex.95; FSL reports Exs.309 to 313; Hotel King's entry in the register Ex.52; Hotel King's bill Ex.224; Hotel City Palace entry Ex.54; arrest memo of accused Nos.1 and 2 dated 25-6-1995 Ex.123; register regarding entry No.67 of Telephone Department of Nabipur area Ex.176; Telephone Advice Note Book Entry No.17402 at Ex.177; Original Advice Book Ex.181; arrest memo of accused Nos.3 and 4 Ex.210 dated 28-6-1995 and newspaper photographs taken by D.W.No.1 at Exs.254 and 256. Apart from other documents, prosecution also produced report as to keeping muddamal in Police Station dated 27-8-1995 at Ex.109 and also forwarding letter to FSL dated 25-6-1995 at Ex.108. 5.7 After recording the evidence of prosecution witnesses was over, learned Judge explained to the appellant and other accused the circumstances appearing against them in the evidence of prosecution. Further statements as required under Sec.313 of the Code was recorded. In the further statement of the appellant-Ismail Adam Mitha, he totally denied the case against him and stated that police had filed false case against him. Apart from that, he submitted his written statement as contemplated by Sec.233(2) of the Code and claimed that he was falsely implicated in the case. To support his case, he got examined D.W.No.1, Bakulbhai Jivabhai Patel, Bharuch reporter of a Gujarati vernacular daily "Gujarat Samachar", as D.W.No.1 at Ex.251 and prayed for acquittal and also relied upon ration card issued by the Civil Supplies Authority. Similarly, other accused also denied the case of the prosecution and submitted their written statement as contemplated under Sec.233(2) of the Code and claimed them to be innocent and falsely involved and hence, prayed for acquittal. They chose neither to examine any witness to support their say nor stepped into the witness box for deposing on oath. 5.8 After giving opportunity to the learned advocates appearing for the respective parties and on appreciation of evidence adduced by the prosecution, learned Trial Judge came to the conclusion that the prosecution did establish its case against the accused No.1 for the offence under Sec.21 read with Sec.22 of the Act beyond reasonable doubt. The Trial Judge, however, acquitted the accused Nos.2 to 6 for the charges levelled against them. The learned Judge, after hearing the accused No.1 on the point of sentence, ordered him to undergo sentence of 11 years R.I. and fine of Rs.2,00,000/-, in default, to suffer two and half years more which is giving rise to file Criminal Appeal No.133 of 2000 for the original accused No.1 against his conviction and Criminal Appeal No.248 of 2000 for the State against the acquittal of original accused No.2-Aminaben, wife of Ismail Adam Mitha, and original accused No.5-Ibrahim Malangminya Shaikh. For rest of the accused i.e. original accused Nos.3,4 and 6, who have been acquitted by the court below, no appeal has been preferred by the State. 6. We have heard Mr.Harijindar Singh for Mr.Ramnandan Singh, learned counsel for the appellant in Criminal Appeal NO.133 of 2000 as well as for the respondent Nos.1 and 2-original accused Nos.2 and 5 in Criminal Appeal No.248 of 2000 and Mr.I.M.Pandya, learned APP for the respondent-State in Criminal Appeal No.133 of 2000 as well as for the appellant in Criminal Appeal No.248 of 2000. The appellant of Criminal Appeal No.133 of 2000 and respondents of Criminal Appeal No.248 of 2000 produced their written submissions which are ordered to be taken on record. We have also heard the arguments advanced at the bar by the learned counsel for the respective parties and also the written submissions and reappreciated the whole evidence on record shown to us by the learned counsel for the respective parties. Learned counsel for the respective parties also placed reliance upon various reported judgments as reflected in their written submissions which would be considered as and when necessary. 7. It was the first contention raised by the learned counsel for the appellant, Mr.Harijindar Singh, that the alleged contraband article seized on 25-6-1995 was