CR.A/856/1998 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 856 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== STATE OF GUJARAT Versus GUNVANTLAL JAWAHARLAL BHAIYA & ANOTHER ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the State MR BHAVIN S RAIYANI for the respondents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 02/09/2008 CR.A/856/1998 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal calls in question the correctness of judgment and order dated 30.06.1998 passed by the Additional Sessions Judge, Vadodara in N.D.P.S. Case No. 2 of 1998. By the impugned judgment, the Trial Court has acquitted the present respondents – original accused of the offence punishable under Sections 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and Mr. Bhavik Raiyani for the respondents. We have perused the judgment and gone through the record of the case. At the trial, the prosecution led evidence that on the basis of secret information received by the police that the respondents were selling ganja at their house, a raid was carried out and on search of the house of respondents 5 packets of ganja, each weighing 150 grams, were recovered. Except the police officials forming part of the raid, the other witnesses examined by the prosecution – panch witness and the witness who weighed the contraband material at the time of seizure, did not support the prosecution case. The other panch witness was not examined. The Trial Court, in absence of independent corroboration, found it unsafe to rely upon the evidence of only police officials, and accordingly acquitted the respondents. Mr. Nanavati, learned Prosecutor for the State, has vehemently submitted that the Trial Court was in error in rejecting the evidence of officials of raiding party only on the ground that they were police CR.A/856/1998 3/6 JUDGMENT officials. He has submitted that nothing has been brought out by the defence in the cross-examination of any of these police witnesses that they are not speaking the truth, or that they are interested in securing the conviction of the accused. He has further submitted that when there is nothing on record to shake the credibility of any these witnesses, there was no justifiable reason for the Trial Court not to believe their evidence about the manner in which the raid was conducted and muddamal seized from the house of the respondents. He has also submitted that all mandatory provisions of law as regards procedure to be following before and during the raid have been followed in the present case. It is true that no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The rule of prudence, however, requires only a more careful scrutiny of their evidence since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. Merely because the panch witnesses and the witness who brought the weights and scale to weigh the muddamal did not support the prosecution case and were declared hostile by itself would not be a sufficient ground for disbelieving the police witnesses and discard the prosecution case. However, the appeal must fail for another reason. We notice from the evidence of panch witnesses and the police officials that there is discrepancy as regards the sample of muddamal seized and sent to the CR.A/856/1998 4/6 JUDGMENT laboratory for examination. PSI Jaiminmiya Thakor (PW-3), who was member of the raiding party, has deposed that 5 packets of ganja were found from the house of the respondents. The contents of all these five packets were put in one packet and the same was tied with a thread. Signatures of panch witnesses and PI Rana were put on the paper slip and the same was sealed with the packet and taken in custody. The panchnama also records that the packet was tied with red thread and a slip containing signatures of both the panchas and PI Rana was put with the packet and thereafter sealed. PI Rana (PW-5) also states that contents of the five packets found from the house of respondents were emptied and packed in a white paper on which red thread was tied, slip having signatures of two panch witnesses was fixed and thereafter the packet was stamped with the seal of PI Makarpura. He does not mention about having put his signature on the slip affixed to the packet. Interestingly, the Forensic Science Laboratory Report (Exh. 14) records that the slip found with the packet bears the signatures of only the panch witnesses. This is not the only discrepancy. PI Rana and PSI Thakor state in their testimony that the ganja that was found from the house was in powder form, almost in the nature of crushed cannabis. Even the pacnhnama shows that ganja found was crushed and in powder form. The Forensic Science Laboratory report however shows that the sample sent to it for examination “dry fragmented stem axis, few greenish dried flowers and a few dried yellow fruits”. There is a marked difference in the nature of ganja stated by the witnesses to have been recovered and the one sent for examination to the laboratory. The difference in form is quite obvious and it is improbable to believe that flowers and stems could have been mistaken as powder. We also find from the record that no witness has been examined by the prosecution to prove that the seized contraband was securely kept in the police station before being sent to the laboratory for examination. Only one witness, PW-4 CR.A/856/1998 5/6 JUDGMENT Constable Gordhanbhai Ramjibhai has been examined and he only deposes about carrying the sealed packet from the police station on 9.12.1997 to the laboratory. Where was the muddamal kept between 7.12.1997 and 9.12.1997 and who kept it is not forthcoming. No registers have been produced on record to show that proper entries regarding the receipt, storage and being sent to laboratory were made by the police officials. This is a serious infirmity and though the samples were received in the Forensic Science Laboratory in a sealed condition, the possibility of them being tampered prior to their being sent to the laboratory cannot be ruled out. It is true that provisions of Sections 52 and 57 of the Act are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused and seizure of the article. Here there is no evidence o record to establish that the muddamal parcel was sealed by the officer-in-charge of the police station as required under Section 55 of the Act. Further there is no evidence to show that the Investigating Officer followed the procedure prescribed in Section 57 of the Act of making full report of all particulars of arrest and seizure to his immediate superior officer. Also, the evidence on record is sketchy and not conclusive on the point that the sample sent to the Chemical Analyser was the same that was seized from the house of the accused. Under the circumstances, we are of the considered opinion that the prosecution has miserably failed to prove that the muddamal allegedly recovered from the house of the respondents was properly seized and stored prior to it being sent to the laboratory for examination and the possibility of it being tampered with or even replaced cannot be ruled out. Therefore, though not completely agreeing with the reasoning CR.A/856/1998 6/6 JUDGMENT given by the Trial Court for acquitting the respondents, we find that on the basis of the aforesaid evidence and faulty investigation by the prosecution, it would not be safe to convict the respondents for a serious offence of possessing and selling ganja. In the result, the appeal filed by the State is therefore dismissed and the acquittal of the respondents is confirmed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd