CR.A/291/2002 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 291 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 ? ====================================== SOHANLAL KASIRAM BRAHMIN & 1 - Appellants Versus STATE OF GUJARAT & 1 - Opponents ====================================== Appearance : MR BN KESHWANI for Appellant No. 1. MR ASHISH M DAGLI for Appellant No. 2. MR KP RAVAL, APP for Opponents. ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA CR.A/291/2002 2/42 JUDGMENT and HONOURABLE MR.JUSTICE K.A.PUJ Date : 06/10/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. The present appeal is filed by the appellants-original accused Nos. 1 & 2 through Jail against the judgment and order dated 29.01.2002 passed by the learned Additional City Sessions Judge, Court No. 9, Ahmedabad in Sessions Case No. 26 of 2001 whereby the appellants were convicted under Section – 17 read with Section 29 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as “the Act”) and were ordered to suffer rigorous imprisonment for a period of 10 years and fine of Rs. 1 Lacs and in default thereof, each of the accused to undergo further R.I of two years. 2. The case of the prosecution is that P.W. 1 – J.N. Parmar, P.I., attached to the State Narcotic Cell was on duty in the morning on 20.11.2000, when while he was in the office with PI Chauhan, he received a secret information to the effect that, two persons of Rajasthani origin one of whom was named Sohanlal and the other being named CR.A/291/2002 3/42 JUDGMENT Ramchandra and that, the said Sohanlal Kasiram Brahmin would be wearing ear rings in his ears and both of whom would be aged about 30-35 years and information was further given to the effect that, both the above referred persons would be passing form Khokhra Bridge and go to Kankaria Lake from the road behind the Kankaria Zoo and that, both of them would be carrying on their person large quantity of narcotic substance Opium. On receipt of such secret information, the same was reduced in writing in a register maintained in this regard and an entry was made on page No. 104 of the said register with regard to the information received. Immediately after making the entry in the said register, report was made to the superior Officer being the Incharge ACP of the Narcotic Cell and such report was forwarded immediately as per the instructions of P.W. 1 – Mr. Parmar. Subsequent thereto, P.W. 3 – Mr. Chauhan, Police Constables – Hirabhai, Natubhai Makwana, Vinodbhai Dantani were instructed to make preparations to carry out a raid and necessary equipment relating thereto such as wax, seal, string, kit box, weighing scale etc. were gathered and subsequent thereto, P.I. Parmar together with all these persons have CR.A/291/2002 4/42 JUDGMENT left Gandhinagar office of the State Narcotic Cell in vehicle bearing Registration No. GJ-1-V-3272 and reached the office of the Superintendent of Police, Incharge of the Narcotic Cell who was on duty in the office of the Economic Offences Cell located at the New Mental Hospital premises and on reaching the said office, police constable Natubhai was instructed to secure the presence of Panch witnesses, and PI Parmar went over to the office of the S.P., Incharge of State Narcotic Cell and handed over the necessary report containing the information with regard to the raid in question. Subsequent thereto, on the panchas arriving thereat, a search was carried out with regard to the persons of each of the members of the raiding party including the Panch witnesses and nothing incriminating was found upon such search. A preliminary panchnama was drawn between 12.30 hours and 13.00 hours and after completion of such preliminary panchnama, all the members of the raiding party including the Panchas left the office of the Economic Offences Cell and reached the scene of the raid via Chamunda Bridge, via Anupam Cinema, via Khokhra Bridge and the police vehicle was parked near the compound wall of the Municipal Garden CR.A/291/2002 5/42 JUDGMENT known as Balvatica. At about 2.00 p.m., two persons corresponding to the description provided in the secret information were seen coming from the Khokhra Bridge towards where the members of the raiding party were found located and scattered in watch. The moment the said two persons came near at the electric pole, one of the two persons, in whose hand there appeared to be a bag containing something heavy in weight therein was apprehended by P.I. Parmar, whereas the second person apprehending his arrest attempted to flee from the scene of the incident and he was immediately caught hold by Police Constable Vinod Dantani. 3. After observing the necessary formalities as laid down in Section 50 of the Act and since the said two persons did not express their desire to have their search in presence of a Magistrate or a Gazetted Officer, firstly, the accused No. 1 - Sohanlal was searched and on opening the bag found in his possession, another rexine bag of light blue colour was found, within which, two plastic bags were found wherein a semi-solid substance which was pinkish brown in colour was found. A preliminary test was carried out by P.I. Parmar with the aid of the kit box and CR.A/291/2002 6/42 JUDGMENT on such preliminary test, the same was found to be opium. Subsequent thereto, both the bags containing the said substance Opium were weighed together with all the bags in which they were found and the cumulative weight of such substance was established to be 10 Kgs. Soon thereafter, from the substance so found in both the bags, two samples were drawn weighing about 50 Gms. each and a sample to be forwarded to the FSL for analysis and test thereupon was drawn as also a reserve sample was drawn from the bulk of the substance so seized. Such samples were placed into two small plastic bags which were thereafter, heat sealed and both the samples were placed in two separate plastic containers brought along by the members of the raiding party. Slips bearing the signatures of the Panchas as also P.I. Parmar were placed on the top of the containers and both the containers were closed by closing the lid thereon. Subsequently, each of the containers was wrapped in white paper and both of them were tied with string and another slip bearing the signatures of Panchas, P.I. Parmar as well as the accused were placed on the top of each of the containers and thereafter the same was tied up with string and each of the containers CR.A/291/2002 7/42 JUDGMENT was thereafter sealed by applying a wax seal of PI, NDPS, GS, CID Crime and were sealed in such manner. The sample drawn for the purpose of forwarding the same to the FSL was earmarked as mark “A-1” and the reserve sample was earmarked as mark-A-2, whereas the main bulk of the sample was kept lying in the same state in which it was found during the search and the same was tied up in a transparent plastic bag, which was tied over with string, placed in the rexine bag and the said rexine bag was subsequently placed in the bag of fertilizer. A slip bearing the signatures of P.I. Parmar, the Panchas as also the accused was placed on the top of the rexine bag and the bag of fertilizer was stitched and closed with string and the same was tied in such fashion and another slip bearing the signatures of the Panchas, P.I. Parmar as also the accused was affixed thereon and subsequently the same was also sealed in the same manner. 4. It is also the case of the prosecution that upon the accused No. 2 being searched, it was found that except an amount of Rs. 130 in cash, nothing incriminating was found and hence, except the said cash amount of Rs. CR.A/291/2002 8/42 JUDGMENT 130, nothing was seized from the accused No. 2. 5. It is also the case of the prosecution that a memo with regard to the seizure of the goods was handed over to the accused. A panchnama was drawn at the scene of offence and subsequent thereto, the accused were arrested on account of their having committed an offence punishable under the provisions of the Act and an arrest memo was served on them. P.I. Parmar thereafter got prepared and filed his complaint against the accused. Subsequent thereto, both the accused, the seized muddamal as well as the members of the raiding party came over to the Gandhinagar Zone Police Station and an offence came to be registered in the station diary of the Gandhinagar Zone Police Station at II C.R. 24/2000. Subsequent thereto, a muddamal receipt was got prepared and the Senior Officer was informed with regard to the successful carrying out of the raid in question. Thereafter, further investigation was carried out by P.W. 4 – Mr. J.B. Rana, P.S.I. who after taking charge of the investigation, took possession of the muddamal, the accused as well as the relevant documents pertaining to the raid and during the course CR.A/291/2002 9/42 JUDGMENT of his investigation, he forwarded the sample to F.S.L. for analysis and test thereupon. On receipt of the relevant documents pertaining to such chemical analysis, the same were made part of investigation records. 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. Based on the F.S.L. Report, since sufficient incriminating evidence was found against the accused, he was charge-sheeted in the Court of learned City Civil & Sessions Judge, Ahmedabad who framed charge against the accused for commission of the offence punishable under Section 17 read with Section 29 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 Additional City Sessions Judge, Court No. 9, Ahmedabad in Sessions Case No. 26 of 2001. 8. To prove the culpability of the accused, prosecution has CR.A/291/2002 10/42 JUDGMENT in all examined as many as 5 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 City 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. 9. On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Additional City Sessions Judge, Ahmedabad has held that the prosecution has established beyond reasonable doubt that the charge levelled against the accused were proved and, therefore, the accused No. 1 was held guilty of the offence punishable under Section 17 of the Act. The learned Additional City Sessions Judge, Ahmedabad has further held that the accused No. 2 was held guilty under Section 29 of the Act in abetting the offence punishable under Section 17 of the Act. The learned Additional City CR.A/291/2002 11/42 JUDGMENT Sessions Judge, Ahmedabad has, thereafter, 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, accused Nos. 1 & 2 were sentenced to suffer rigorous imprisonment of 10 years and fine of Rs. 1 Lac each and in default thereof, to undergo R.I. of two years. 10.Being aggrieved and dissatisfied with the said judgment and order dated 29.01.2002 passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 26 of 2001, the present appeal is filed by the accused through Jail before this Court under Section 374 of the Code of Criminal Procedure. 11.Mr. B.N. Keshwani, learned advocate appearing for the appellants – original accused No. 1 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 City Sessions Judge, Ahmedabad dated 29.01.2002. He has further submitted that the learned Additional City Sessions Judge has erred in convicting the appellants though there was no cogent or CR.A/291/2002 12/42 JUDGMENT adequate evidence showing his guilt in the matter. He has further submitted that the learned Additional City Sessions Judge, Ahmedabad has failed to appreciate that the appellants are innocent and have not committed the alleged offence. The Panch witnesses have not supported the case of the prosecution at all. Other independent witnesses have also not supported the case of the prosecution. Except the evidence of police witnesses, there is no iota of evidence on the record of the case. The conviction in such a serious offence and the awarding of sentence of 10 years rigorous imprisonment and fine of Rs. 1 Lac on the basis of evidence of the witnesses of police personnel only is not proper, legal and valid and, therefore, the impugned judgment and order is required to be quashed and set aside. 12.Mr. Keshwani has further submitted that the evidence pressed into reliance by the prosecution is untrustworthy, unreliable and can never form the basis of conviction. Though there is no dispute with regard to the fact that mere non support by independent witnesses can by itself never result in acquittal, it is equally well CR.A/291/2002 13/42 JUDGMENT settled that when reliance is to be placed solely on the testimony of police officers, who can be termed to be interested witnesses, their evidence is required to be minutely and carefully scrutinized and any doubts or serious contradictions emerging from their testimonies would destroy the very strength of the prosecution version. He has further submitted that whenever there is no independent corroboration, the testimony of the police witness is required to be weighed very carefully. In the present case, the police witnesses have not only contradicted each other, but serious flaws appear on the record of the proceedings on account of the testimonies of the police witnesses and no reliance can be placed on the testimonies of such witnesses. 13.Mr. Keshwani has further submitted that though the appellant – accused No. 1 is attributed to have been found in actual physical possession of Opium, there is nothing on record which would establish so beyond reasonable doubt. He has invited the Court's attention to Exh. 16 – which is an entry in the register reducing into writing the secret information and pointed out that CR.A/291/2002 14/42 JUDGMENT nowhere therein it is mentioned that the accused No. 1 would be in possession of the narcotic substance. Even the arrest memo Exh. 21 does not establish or indicate in any manner that it is the accused No. 1 himself, who was in actual physical possession of the narcotic substance. He has, therefore, submitted that the doubts arise with regard to the fact as to whether the accused No. 1 was really found to be in physical and conscious possession of any narcotic substance at all. The entire process right from selection of Panchas and at all subsequent stages a doubt has been created about the genuineness of the prosecution version. He has further submitted that it appears from the panchnama Exh. 20 that both the panchas were local residents of Naroda. The selection of such persons as Panchas created a grave doubt with regard to the genuineness of the prosecution version especially in light of the fact that locality in which the raid took place was essentially a locality where there were large number of residential premises, shops and offices. 14.Mr. Keshwani has further submitted that the raid in question was in relation to very serious offence and CR.A/291/2002 15/42 JUDGMENT hence, the Panchas should have been selected in a manner whereby due care and caution was exercised and efforts were made to select reasonably well educated and literate Panchas. The Panch witness – P.W. 1 was a person, who was not even fully capable of affixing his own signature and hence, the only inference that can be drawn is that the panchas of such a nature and qualification were deliberately selected to cook up evidence. 15.Mr. Keshwani has further submitted that the star witness of the prosecution is P.W. 1 – P.I. Parmar, the complainant. He has submitted that this witness has deliberately made a number of false statements on oath and his testimony is required to be discarded. The entire set of documentary evidence pressed into reliance is creating an impression that the same have been subsequently cooked-up with a view to falsely support the prosecution version. Since both the panch witnesses have clearly denied any such documents being executed and drawn in their presence, grave doubts arose with regard to the genuineness and authenticity of such documents. Even the police witnesses have tripped over CR.A/291/2002 16/42 JUDGMENT themselves in the course of their testimonies. Mr. Keshwani has further submitted that P.W. 2 being the complainant has admitted that erasures were made with white ink in the entry Exh. 16. He has further submitted that in the course of his testimony, a number of serious contradictions have arisen which go to the root of the genuineness of the prosecution version. On page 11 of his testimony, Mr. Keshwani has pointed out that the said witness has testified on oath that the accused No. 2 had attempted to flee from the scene of the raid after getting down from a Scooter. As a matter of fact, it was not a case of prosecution that at the time when the raid was taking place, there was any Scooter. An electric pole, figuring and featuring prominently in the Panchnama and other documents including the complaint assumes great importance especially in light of the fact that there is a serious discrepancy with regard to the number given to the said pole by the electric company. The complaint Exh. 22 clearly mentions that both the accused were stopped near an electric pole bearing No. 516, whereas in cross- examination, the number given to the said electric pole was 716 and not 516. He has further submitted that CR.A/291/2002 17/42 JUDGMENT Exh. 20 & 25 wherein the location of the site of the raid is clearly mentioned to be near an electric pole bearing No. 516 and not 716. This discrepancy in mentioning the number of pole is not at all explained by prosecution. 16.Mr. Keshwani has further submitted that both the Police Inspectors, who claimed to be present right since the time when the secret information was received till the time the accused were arrested, have also contradicted the documentary evidence with regard to the number of seals affixed on the muddamal contraband narcotic substance. In absence of independent corroboration in the form of support of the Panch witnesses, this contradiction itself creates grave doubts with regard to the identity of the muddamal. P.W. 2 in the course of his testimony, clearly indicated that only one seal was applied on each of the Muddamal being mark A, A-1 & A- 2. Even P.W. 3 Mr. Chauhan, in the course of his testimony Exh. 33 has deposed in a similar fashion stating that only one seal was affixed on each of the muddamal samples. However, F.S.L. Report Exh. 37 gives a description of the muddamal sample mark A-1 and it has been clearly stated that the packet earmarked CR.A/291/2002 18/42 JUDGMENT as mark A-1 was having two seals on it. He has, therefore, submitted that grave doubts have been created with regard to the identity of the muddamal in question which was sent to F.S.L. for analysis and test thereupon. 17.Mr. Keshwani has further submitted that the provisions contained in Section 50 of the Act have not been complied with. The document Exh. 18 is obviously a forged document as there is an interpolation about the number of electric pole. More over, no time has been written in the document Exh. 18 as to when it was prepared. The Panchas have not supported document Exh. 18 and hence the very existence and genuineness of the document is doubtful. Even the provisions contained in Section 52 of the act have not been complied with since the accused have not been handed over to an Officer in-charge of the nearest Police Station as provided in Section 52 (2) of the Act. There is no compliance of the provisions contained in Section 102 (3) of Cr.P.C. 18.Mr. Keshwani has further submitted that the sealing CR.A/291/2002 19/42 JUDGMENT procedure was not properly followed and there were serious lapses. In support of this contention, he 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 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 in that case 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 CR.A/291/2002 20/42 JUDGMENT 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. 19.In view of the above factual background and for non- compliance of the statutory provisions and keeping in mind the judicial pronouncements on the issues raised, Mr. Keshwani has strongly urged that no other finding except acquittal of the accused from the charges levelled against them would meet with the ends of justice. 20.Mr. Ashish M. Dagli, learned advocate appearing for the appellant No. 2 – original accused No. 2 has adopted all the arguments canvassed by Mr. Keshwani. Over and above this, he has further submitted that the accused No. 2 was falsely implicated and nothing objectionable was found from his possession. Simply because the accused No. 2 was accompanying the accused No. 1 and simply because, he made an attempt to ran away after seeing the raiding party, he could not have been CR.A/291/2002 21/42 JUDGMENT implicated and/or held to be guilty of the alleged offence. In support of this submission, he relied on the decision of the Hon'ble Supreme Court in the case of Sorabkhan Gandhkhan Pathan and another V/s. State of Gujarat, reported in (2004) 13 Supreme Court Cases 608, wherein it is held that no material was produced to establish that the accused No.2 in that case had knowledge that accused No.1 was carrying contraband articles or was conniving with the