CR.A/926/2003 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 926 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= VARSANGBHAI GANPATBHAI PARMAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS BANNA S DUTTA for Appellant(s) : 1, MR KC SHAH, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1. The appellant preferred this appeal challenging the legality CR.A/926/2003 2/9 JUDGMENT and validity of the impugned judgment and order rendered by learned Additional Sessions Judge, Ahmedabad (Rural) ('learned trial Judge', for short) on dated 26.5.2003 in NDPS Case No.2 of 2002. By virtue of the impugned judgment and order the learned Additional Sessions Judge was pleased to convict the appellant – accused for the offence punishable under Section 21 read with Section 8(c) of the Narcotic Drugs and Psychotropics Substances Act ('NDPS Act', for short), the accused was sentenced to undergo rigorous imprisonment ('RI', for short) for 10 years and to pay fine of Rs.1,00,000/-, in default to undergo further simple imprisonment for one year for the aforesaid offence. 2. The prosecution case in nutshell is as under:- 2.1 ASI Raimalbhai Versibhai and Prohibition Constable Baldevbhai Maneklal of Viramgam Prohibition Police Station received a secret information that contraband 'charas' was kept by the appellant – accused in his house situated at Village Pirana, Tal.Daskroi. ASI Raimalbhai and Constable Baldevbhai informed the first informant Mr.D.S.Rathod, PSI Prohibition Police Station, Viramgam and other Police Officers. Panchas - Chetal Amrutlal Shah and Dharmendrasinh Manubha were called. They were informed about the information. On 7.11.2001, at about 16.50 hours, the raiding party consisting of PSI Rathod, PI M.D.Solanki and other Police Officers and Police staff members along with the aforesaid two Panchas raided the house of the accused situated at Village Pirana. Upon search being conducted in house, the accused was found present in the house and in the house, CR.A/926/2003 3/9 JUDGMENT near a wooden cupboard, one drum was there and searching inside the drum, one black colored canvas bag was found out. Opening the chain of the bag, charas was traced out, weighing about 7 kgs. and 700 gms. Samples were collected. In presence of Panchas, samples were sealed and the remaining part of the contraband article charas was sealed. In presence of Panchas, recovery panchnama was drawn. FSL Officer conducted spot investigation and the substance found from the house of the accused was reported to be charas. In connection with this incident, PSI Mr.Rathod lodged first information report, and the same was registered. Investigation was commenced. Statements of material witnesses, including the Police Officers and staff members, who were party to the raid, were recorded. Muddamal samples were forwarded to Forensic Science Laboratory. The analysis report revealed that the substance was found to be charas. After the completion of the police investigation, chargesheet was filed, which was registered as NDPS Case No.2 of 2002, and the said case was transferred to the Court of learned trial Judge, for conducting trial in accordance with law. 2.2 The learned trial Judge framed charge against the accused for the offence punishable under Section 21 read with Section 8(c) of the NDPS Act at Exh.4. Since the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After the completion of the evidence, the learned trial Judge recorded further statement of the accused. The accused generally denied all the allegations leveled against him and stated that CR.A/926/2003 4/9 JUDGMENT he was residing in the house situated at Biroli Road, along with his wife and children. That the house in which the charas was found was not his house and he was not residing in said house and he was falsely implicated in this case. 2.3 After appreciating the oral and documentary evidence on record and after hearing arguments advanced by learned advocates representing both the sides, the learned trial Judge delivered the impugned judgment and order and came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt against accused. It was further observed that no mandatory requirements laid down under the NDPS Act was violated. Ultimately, the learned trial Judge convicted the accused for the offence punishable under Section 21 read with Section 8(c) of the NDPS Act and passed order of sentence as referred to hereinabove. 3. On behalf of the appellant – accused learned advocate Ms.Banna Datta submitted that the prosecution failed to prove that the house, which was searched by the Police and the so-called contraband charas was found out, belonged to the accused. That it has come in evidence that the house from which the charas was found, had no roof and no doors. That therefore, the condition of the house revealed in the evidence adduced by the prosecution itself suggested that it was not inhabitable. The prosecution failed to establish that the place from where the charas was found, was of the ownership of the accused or even in his possession. Likewise, the prosecution failed to establish any nexus between the accused and the CR.A/926/2003 5/9 JUDGMENT contraband charas. That the mandatory provisions contained under the NDPS Act have been outright violated. Therefore, it was submitted that the appeal be allowed and the impugned judgment and order rendered by the learned trial Judge be set-aside and the appellant – accused be acquitted. 4. On behalf of the respondent – State, learned APP Mr.K.C.Shah fully supported the impugned judgment and order rendered by the learned trial Judge and submitted that by documentary evidence, the prosecution successfully established the fact that the premises from where the contraband charas was found belonged to the accused. That even at the time when the raid was conducted in the premises, the accused was found present in the premises. That while receiving the secret information and while reducing it in writing and forwarding it to the superior Officer as well as while conducting search, the seizure of contraband charas and packing of samples and the remaining part of charas, no mandatory provision laid down under the Act has been violated. Required mandatory provisions have been duly complied with. The substance was reported to be charas by the FSL. That huge quantity, amounting to commercial quantity of charas has been recovered from the conscious possession of the accused. Under such circumstances, it is submitted that the appeal be dismissed. 5. At the outset, it may be noted that the prosecution examined one of the Panchas Dharmendrasinh Chavda at CR.A/926/2003 6/9 JUDGMENT Exh.11 in connection with seizure panchnama, Exh.15. Considering the deposition of Panch Dharmendrasinh, he fully supported the contents of the panchnama, Exh.15. The prosecution examined first informant PSI Rathod at Exh.18. Considering his deposition, it clearly transpires that the secret information was received by ASI Raimalbhai and Police Constable Baldevbhai. They informed the first informant Mr.Rathod about the information, which was reduced in writing and his immediate superior was informed. According to his deposition, panchas were called and first informant Mr.Rathod himself, PI Mr.Solanki and other Police Officers, including the Police staff members along with two Panchas raided the house of the accused situated at Village Pirana. That when they reached near the house, the accused was found present in the house. Accused was apprised about the information received by Police. He was also informed that if the accused desired to have the search in presence of any Gazetted Officer or a Magistrate, he has the option, but, the accused refused to the search being conducted in presence of any Gazetted Officer or Magistrate. That in presence of accused, the search was conducted and near one wooden cupboard, one iron- sheeted drum was found. Searching inside the drum, one black colored canvas bag was found. The chain of the bag was opened and inside it, charas was found, weighing about 7 kgs. and 700 gms. Samples were extracted from the substance charas. Samples were duly packed and sealed. Remaining part of substance charas was also duly packed. Seizure panchnama was drawn and in connection with this CR.A/926/2003 7/9 JUDGMENT offence, Mr. Rathod lodged the first information report before the Police. 5.1 The prosecution examined other members of the raiding party, including ASI Raimalbhai Desai, who had received the secret information and witness Sunilbhai Patel, who had weighed the substance charas and other Police witnesses, including the investigating PSI Mr.Solanki. Considering their depositions, it is true that the house in which the raid was conducted was in a dilapidated condition. On behalf of the appellant, it was vehemently argued that the prosecution failed to establish a very important aspect that the house belonged to the accused or atleast it was in his possession. However, in this connection, considering the deposition of Investigating PSI Mr.Solanki, Exh.34, it clearly transpires that the property tax bill was recovered, wherein the owner of the house was shown to be one Kankuben, who happened to be the mother of the accused. Bill is produced at Exh.38. The copy of the ration-card was also seized, which is at Exh.39 and the election card is produced, which is at Exh.40. Considering the documentary evidence, it becomes clear that at the time of raid, the house was in possession of the accused. Over and above this, the important aspect is this that at the time when the police raided the house, the accused was found present in the house. Considering the entire evidence on record, and even especially considering the further statement of the accused recorded under Section 313 of the Code of Criminal Procedure, the accused nowhere satisfactorily explained his presence in the house at the time of raid. Under such CR.A/926/2003 8/9 JUDGMENT circumstances, the learned trial Judge rightly concluded that the house in which the contraband substance was lying was in the possession of the accused. 5.2 In the memo of appeal, much is said about the non- compliance of certain mandatory provisions contained in the NDPS Act, but during the course of arguments, learned advocate Ms.Banna Datta for the appellant did not specifically submit as to which mandatory provision contained in the NDPS Act was not complied with and how. Be it as it may be, but, considering the case of the prosecution from the angle of certain mandatory requirements laid down in the NDPS Act, it clearly transpires perusing the entire evidence on record that the secret information received by PSI Rathod was reduced into writing and was forwarded to his immediate superior Officer. It further transpires that the person of the accused was not required to be searched, but as the secret information was received by the police, the contraband article was required to be searched in the house. Despite this, it has come on record that the accused was asked as to whether he required the search to be conducted in presence of any gazetted Officer or any Magistrate. But, the accused did not opt for the requirement. Considering the evidence on record, there is nothing that any mandatory provision regarding search, seizure or packing of the contraband article charas, were violated. In presence of panchas, samples were extracted from the substance charas and they were properly packed and sealed. Not only considering the depositions of Police Officers, who were present at the time of raid, but, even CR.A/926/2003 9/9 JUDGMENT considering the deposition of Panch Dharmendrasinh Chavda, Exh.11, there does not appear any mandatory requirement laid down under the NDPS Act, seems to have been violated at the time of search, seizure or packing of the samples and of the remaining substance charas. The FSL report clearly establish that the sample analysed was of the substance charas. 6. Thus, re-appreciating the overall evidence on record, we do not find any reason to interfere with the impugned judgment and order rendered by the learned trial Judge recording the conviction of the appellant. In the result, the appeal deserves to be dismissed. 7. For the foregoing reasons, the appeal stands dismissed. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)