CR.A/1028/2002 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1028 of 2002 With CRIMINAL APPEAL No. 1059 of 2002 With CRIMINAL APPEAL No. 8 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 ? ========================================================= MANOJ VALMIKI PANDE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 1059 of 2002 Mr. Atul H Mehta for the appellant Mr. KT Dave, APP for the respondent – State of Gujarat. Criminal Appeal Nos.1028 of 2002 and 8 of 2003 MS SADHANA SAGAR for Appellants MR KT DAVE ADDL. PUBLIC PROSECUTOR for respondent – State of Gujarat ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ CR.A/1028/2002 2/42 JUDGMENT Date : 13/02/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. In these three appeals filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) the challenge is to the correctness of the judgment and order dated 21.10.2002, rendered in NDPS Case No.9 of 2000, by the learned Additional Sessions Judge, Fast Track Court No.1, Vadodara, by which the appellants (A-1, A-2 and A-3 for short) in these three appeals have been convicted for the offence punishable under Section 8 (c ) read with Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) and all the accused persons have been sentenced to suffer R.I. for ten years and fine of Rs.1 lakh and in default of payment of fine, R.I. for further period of six months. 2. Briefly stated, the prosecution case as disclosed in the FIR and unfolded during trial is CR.A/1028/2002 3/42 JUDGMENT as under: 2.1. P.W.9, N.K. Rathod, Police Inspector, was on duty on 11.7.2000 at City Police Station, Vadodara. He received an information from Rajendra Mohanrao Patil, a Police Head Constable and 'D' staff, that one Allu Suleman (A-1) is doing the business of selling charas and is also keeping stock of charas with him. On receipt of the said information, P.W.9, N.K. Rathod, reduced the same into writing in his station diary and also conveyed the said message to his official superior. P.W.9, N.K. Rathod, thereafter made preparation for raiding the house of A-1. He instructed Naginbhai Devjibhai, ASI to call two independent persons to act as panchas. On his instruction, Naginbhai Devjibhai called P.W.2, Bhupendra Sivajirao and P.W.3, Alpesh Jagdishchandra Upadhyaya, to act as panchas. These two persons were informed about the information received by N.K. Rathod from Rajendra Mohanrao Patil, and also the purpose of the raid to be carried out and they agreed to act as CR.A/1028/2002 4/42 JUDGMENT panchas. Thereafter Rajeshbhai Dhorabhai, a police constable was asked to bring electronic weighing machine and he brought the electronic weighing machine. Thereafter P.W.9, N.K. Rathod, P.I., P.W.1, S.T. Desle, PSI, Naginbhai, ASI, Rajendra Mohan, Head Constable, Mahendrasinh Chhatrasinh, Police Constable and Rajesh, Police Constable in company of two panch witnesses started for the raid. As per further case of the prosecution, the raiding party reached at the residence of A-1 situated above the “G” Madar Murghi Centre, at about 1 P.M., and at that time A-1 was at his residence. P.W.9, N.K. Rathod, informed A-1 about the information received by him and also told him that they want to search his house. P.W.9, N.K. Rathod also introduced the panchas and other members of the raiding party to A-1. P.W.9, N.K. Rathod informed A-1 that he is a gazetted officer and if A-1 desires that the raid to be carried out in presence of another gazetted officer or an Executive Magistrate, arrangement for the same will be made. But, A-1 told that he does not want the raid to be carried CR.A/1028/2002 5/42 JUDGMENT out in presence of any other gazetted officer or an Executive Magistrate and P.W.9, N.K. Rathod may carry on the raid. This was given in writing by A-1 to P.W.9, N.K. Rathod. They, therefore, raided the house of A-1. During the raid, from a tin box kept in a stone cup-board they recovered a lump of black substance wrapped in a plastic bag. On preliminary examination it was found to be charas. The weight of the said substance was 4 Kg. 134 Grams. From the said lumps, two samples of 50 grams each were taken and sealed and the remaining quantity of the lumps was also sealed. Thereafter the accused was arrested and he was informed about his arrest, in writing. 2.2. As per further case of the prosecution, in the meanwhile, it came to the notice of the members of the raiding party that the charas was given to A-1 by A-2 and A-3, Manoj Valmiki Pande and Ajmuddin Ahmed Anasri respectively, and they were at that time boarded in Room No.8, on the third floor of Samrat Hotel, Mangal Bazar, Vadodara. A panchnama was drawn and then the CR.A/1028/2002 6/42 JUDGMENT raiding party proceeded towards Samrat Hotel and they carried out raid in the room occupied by A-2 and A-3. A-2 and A-3 were also informed about the information received by P.W.9, N.K. Rathod and also informed that they want to raid the room and N.K. Rathod, P.I. is a gazetted officer and if A- 2 and A-3 want the raid to be carried out in presence of any other gazetted officer or an Executive Magistrate, they shall make necessary arrangement for that purpose but if A-2 and A-3 prefer that NK Rathod may proceed further with the raid then he will raid the room and since A-2 and A-3 gave reply in writing that they do not want the raid to be carried out in presence of any other gazetted officer or an Executive Magistrate and N.K. Rathod may carry out the raid, the raid was carried out by NK Rathod and the raiding party. During the raid, charas weighing 3 Kg. 228 grams wrapped in a plastic sheet was recovered from a rexin bag. Thereafter samples were taken from the recovered charas and sealed after completing necessary procedures. Thereafter panchnama to the said effect was drawn CR.A/1028/2002 7/42 JUDGMENT in presence of the panchas. Both the accused were arrested and they were also informed in writing about their arrest. 2.3. A complaint for the aforesaid incident was lodged by P.W.1, S.T. Desle, in presence of P.W.9, N.K. Rathod before P.W.5, Arvind Hiralal, ASI in the City Police station, Vadodara which was reduced into writing and is produced on record at Ex.32. Thereafter the muddamal was entrusted to P.W.6,Kalidas Maganbhai, ASI, in intact sealed condition. Thereafter further investigation was carried out by P.W.9, N.K. Rathod, P.I. 2.4. During the course of investigation, statement of the witnesses was recorded. Muddamal was sent to FSL for analysis, through P.W.7, Amrutbhai Vajabhai, Head Constable, Ex.44. 2.5. On receipt of the report from FSL certificating that the contraband article sent for analysis was charas and as sufficient CR.A/1028/2002 8/42 JUDGMENT incriminating evidence was found against the accused persons, on completion of the investigation, the charge-sheet was filed against all the accused persons for commission of the offence punishable under section 8 (c ) read with section 20 (b) (ii) of the NDPS Act in the Sessions court, Vadodara. 2.6. The learned Additional Sessions Judge, Vadodara to whom the case was made over for trial framed charge against the accused persons for commission of the offence punishable under Section 8 (c ) read with section 20 (b) (ii) of the NDPS Act which was read over and explained to the accused persons. The accused persons pleaded not guilty to the charge levelled against them and claimed to be tried and thereupon they were tried by the learned Additional Sessions Judge, Vadodara, in NDPS Case No.9 of 2000. 2.7. To prove the culpability of the accused persons, the prosecution has examined and relied upon the oral testimonies of 9 witnesses, the CR.A/1028/2002 9/42 JUDGMENT details of which are given in para 8 of the impugned judgment and order. They are as under: P.W. No. Name Ex. No. Page No. 1 S.T. Desle, PSI - complainant 31 44 2 Bhupendra Shivajirao, Panch witness 36 62 3 Alpesh Jagdishchandra Upadhyaya, Panch witness 37 64 4 Mahendrabhai Babarbhai, Police Constable, Writer of PI and member of the raiding party 38 66 5 Arvindbhai Hiralal, ASI, In- charge of City Police Station, Vadodara 42 72 6 Kalidas Maganbhai, Crime Writer of City Police Station, Vadodara 43 74 7 Amrutbhai Vajabhai, Head Constable, who took muddamal to FSL 44 76 8 Musabhai Hajiahmedbhai, owner of Samrat Hotel 47 81 9 N.K. Rathod, PI, Investigating Officer 48 82 2.8. To prove the case against the accused persons, the prosecution has also produced a number of documents and relied upon the contents of the same, details of which are given in paragraph 9 of the impugned judgment and order. CR.A/1028/2002 10/42 JUDGMENT The relevance of those documents would be discussed hereinafter in this judgment as and when required. 2.9. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against them in the evidence of the prosecution and recorded their further statement as required under section 313 of the Code. In their further statement, the accused persons denied the case of the prosecution in toto. They reiterated that they have been wrongly roped in the false narcotic case though they were not found with the contraband article charas. However, they did not lead any evidence nor did they examine any witness in support of their defence. 2.10. On appreciation, evaluation, analysis and scrutiny of the evidence produced by the prosecution, the trial court held that the prosecution has proved its case beyond all CR.A/1028/2002 11/42 JUDGMENT reasonable doubts. According to the trial court, though independent witnesses like panchas and the owner of Samrat Hotel have not supported the persecution case, on appreciation of other evidence on record like that of the police officers, the prosecution has succeeded in proving the complicity of the accused and, therefore, the trial court found the accused persons guilty of the offence with which they ware charged and recorded the order of conviction and sentence of which reference is made in earlier paragraph of this judgment, which has given rise to instant three appeals at the instance of the accused persons. 3. Criminal Appeal No.1059 of 2002 is filed by A-1 through Mr. Atul H. Mehta, learned advocate whereas Criminal Appeal Nos.1028 of 2002 and 8 of 2003 are filed by A-2 and A-3 respectively from jail and Ms. Sadhna Sagar, learned advocate is appointed by this Court to assist them. CR.A/1028/2002 12/42 JUDGMENT 4. Mr. Atul H. Mehta, learned Advocate for A-1 and Ms. Sadhna Sagar, learned advocate for A- 2 and A-3, have assailed the impugned judgment and order of the trial court by contending that the prosecution has examined the members of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non-compliance of the mandatory as well as statutory provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. It is also highlighted by them that the prosecution has not been able to successfully establish that the contraband article which was sent to FSL was not tampered with during the course of its journey from the stage of seizing and sealing till its reaching the FSL. It is also emphatically submitted by them that independent witnesses like panch witnesses and owner of the Samrat Hotel have not supported the prosecution case with regard to the recovery of charas, seizure and sealing of the same and also that A-2 and A-3 were boarded in Samrat Hotel and, therefore, the CR.A/1028/2002 13/42 JUDGMENT contents of the panchnama are not proved and in that view of the matter, the prosecution has not been able to prove the culpability of the accused persons for commission of the offence punishable under section 8 (c ) read with section 20 (b) (ii) of the NDPS Act. Besides this Mr. Atul Mehta, learned advocate for A-1 has raised the contention that A-1 was not in occupation of the premises from where the contraband article charas was recovered. The prosecution has relied upon four documents Ex.62, 63, 64 and 68 to prove and establish the fact that A-1 was occupying the said house and though those documents were not relevant, the trial court wrongly relied upon those documents, which has resulted into miscarriage of justice. Moreover, according to Mr. Mehta, when the panchnama of the house from where the contraband article charas weighing 4 Kg. 134 grams was recovered was drawn during the course of trial, A-1 was not found in the said premises and, therefore, the prosecution has not been able to establish the guilt of A-1. On the aforesaid premises, it is submitted by the CR.A/1028/2002 14/42 JUDGMENT learned advocates for the accused that the impugned judgment and order deserves to be quashed and set aside by allowing these appeals and thereby acquitting the accused persons of the offence with which they were charged. They, therefore, urged to allow the appeals. 5. Per contra, Mr. KT Dave, learned APP for the respondent – State of Gujarat, has submitted that by voluminous evidence produced by the prosecution, complicity of the accused persons is proved beyond reasonable doubt. A-1 was caught with the contraband article charas weighing 4 Kg. 134 grams at his residence, kept in a tin box in the stone cup-board, in presence of the members of the raiding party as well as panchas which was seized and thereafter samples were drawn and sealed as per the requirements of sealing procedures and A-1 was arrested from his house itself. So far as A-2 and A-3 are concerned, they were at the relevant time boarded in Samrat Hotel. They were also caught with contraband article charas weighing 3 Kg. 228 grams from the CR.A/1028/2002 15/42 JUDGMENT room occupied by them. The said quantity of charas was recovered in presence of the panchas as well as members of the raiding party. The muddamal was seized and thereafter samples were sent for analysis to FSL and the report of FSL in terms certified that the muddamal sent for analysis was charas. It is also highlighted by him that the prosecution has been successfully proved that during the course of the journey of the muddamal from the stage of recovery till its reaching at FSL it was in safe custody of police personnel and in that connection the prosecution has examined police officers in whose custody the muddamal was safely kept. It is also pointed out by him that though the panchas and owner of Samrat Hotel have turned hostile and have not supported the prosecution, it does not waken the case of the prosecution. He has submitted that it is not unknown to criminal jurisprudence about the panchas turning hostile and that now-a-days it is on increase. However, the case does not depend solely on the evidence of the panch witnesses. If the evidence of the members of the CR.A/1028/2002 16/42 JUDGMENT raiding party is of sterling quality then there is no reason to discard their evidence and on the basis of the evidence of the members of the raiding party, order of conviction can be passed. In instant case, the evidence of the members of the raiding party is sterling quality and they have fully supported the prosecution case. On the aforesaid premises, according to him, the prosecution has established the case beyond reasonable doubt and, therefore, the trial court has rightly recorded the order of conviction and sentence. He further submitted that the impugned judgment and order does not warrant interference of this court in these appeals and as the appeals lack merit, they deserve to be dismissed. He, therefore, urged to dismiss the appeals. 6. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a compete and comprehensive appreciation of all vital features of the case and the entire evidence on record CR.A/1028/2002 17/42 JUDGMENT which is read an re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with NDPS cases, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused persons and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 7. At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained CR.A/1028/2002 18/42 JUDGMENT thereunder. 8. In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 SC 7. In para 1 of the said judgment, the Supreme Court has observed as under: “The Statement of Objects and Reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the CR.A/1028/2002 19/42 JUDGMENT said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith”. 9. In view of the stringent penal provisions and harsh punishment provided thereunder and in view of the observations made by the Supreme Court in the above referred to judgment, we have to find out as to whether in instant case strict compliance of the safeguards provided under the statute have been observed by the Police personnel during the course of the raid and seizure of the muddamal, contraband article, charas. 10. In this connection, we shall first refer to the oral testimony of P.W.1, S.T. Desle, PSI, CR.A/1028/2002 20/42 JUDGMENT Ex.31, page 44 of the page book. This witness has lodged the complaint which is on record at Ex.32. He has, inter alia, testified that on 11.7.2000 he was serving as PSI in City Police Station, Vadodara. At that time NK Rathod was In charge PI of the police station. One Rajendra Mohanrao, Head Constable received information with regard to A-1 selling charas and keeping stock of charas in his house which he conveyed to NK Rathod. On getting the said information, NK Rathod noted down the said information in the station diary and conveyed the said information to his official superior. Thereafter panchas were called through Devjibhai Naginbhai, ASI of the police station and an electronic weighing machine was requestioned and kept ready. Thereafter panchas were informed about the information received by NK Rathod and preliminary panchnama was prepared and thereafter raid was carried out as mentioned in the complaint Ex.32. 11. Thereafter the prosecution has examined CR.A/1028/2002 21/42 JUDGMENT and relied upon the oral testimony of P.W 9, NK Rathod, PI, Ex.48, page 82 of the paper book. He has, inter alia, testified that on 11.7.2000 he was on duty at City Police Station, Vadodara. He received an information from Rajendra Mohanrao Patil, a Police Head Constable and 'D' staff, that one Allu Suleman (A-1) is doing the business of selling charas and is also keeping stock of charas with him. On receipt of the said information, he reduced the same into writing in his station diary and also conveyed the said message to his official superior. He thereafter made preparation for raiding the house of A-1. He instructed Naginbhai Devjibhai, ASI to call two independent persons to act as panchas. On his instruction, Naginbhai Devjibhai called P.W.2, Bhupendra Sivajirao and P.W.3, Alpesh Jagdishchandra Upadhyaya to act as panchas. The information received by him from Rajendra Mohanrao Patil was conveyed to these two persons and they were also informed the purpose of the raid and since they agreed to act as panchas they were taken with the police personnel at the time CR.A/1028/2002 22/42 JUDGMENT of raid. Thereafter Rajeshbhai Dhorabhai, a police constable was asked to bring electronic weighing machine and he brought the electronic weighing machine. Thereafter he, P.W.1, S.T. Desle, PSI, Naginbhai, ASI, Rajendra Mohanrao, Head Constable, Mahendrasinh Chhatrasinh, Police Constable, Rajesh, Police Constable in company of two panch witnesses started for the raid with electronic weighing machine and other things which are to be carried when going for a raid. He has further testified that the raiding party reached at the residence of A-1 situated above the “G” Madar Murghi Centre, at about 1 P.M., and at that time A-1 was present at his residence. He informed A-1 about the information received by him and also told him that they want to search his house. This witness also introduced the panchas and other members of the raiding party to A-1. He also informed A-1 that he is a gazetted officer and at the time of raid, if A-1 desires that the raid to be carried out in presence of another gazetted officer or an Executive Magistrate, arrangement for the same CR.A/1028/2002 23/42 JUDGMENT will be made. To this, A-1 told that he does not want the raid to be carried out in presence of any other gazetted officer or an Executive Magistrate and P.W.9, N.K. Rathod may carry on the raid. This was taken in writing from A-1. Thereafter, they raided the house of A-1. During the raid, from a tin box kept in the stone cup- board they recovered lumps of black substance wrapped in a plastic bag. On preliminary examination it was found to be charas. The weight of the said substance was 4 Kg. 134 Grams. From the aforesaid lumps, two samples of 50 grams each were taken and sealed and the remaining quantity of the lumps was also sealed. Thereafter the accused was arrested and he was informed about his arrest, in writing. 11.1. He has further testified that in the meanwhile, it came to the notice of the members of the raiding party that the charas was given to A-1 by A-2 and A-3, Manoj Valmiki Pande and Ajmuddin Ahmed Anasri respectively, and they were at the relevant time boarded in Room No.8, on CR.A/1028/2002 24/42 JUDGMENT the third floor of Samrat Hotel, Mangal Bazar, Vadodara. Therefore, the second part of the panchnama was drawn and then the raiding party proceeded towards Samrat Hotel and they carried out raid in the room occupied by A-2 and A-3. There, again, after completing the formalities which were done while raiding the house of A-1 and as A-2 and A-3 gave