CR.A/1307/2005 1/52 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1307 of 2005 With CRIMINAL APPEAL No. 1598 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= FARIDABANU SHAMSADALI ISMAIL SHAIKH & Anr.- Appellants Versus THE STATE OF GUJARAT - Opponent ========================================================= Appearance : CRIMINAL APPEAL NO.1307 OF 2005 MR.JOSHI, FOR MR.P.R.NANAVATI for Appellant: 1, CRIMINAL APPEAL NO.1598 OF 2005 Through Jail, Ms.Ruppal Patel, Learned Advocate for Appellant No.3 Mr.Bhate, Ld. Addl. PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 17/03/2008 CAV JUDGMENT Both these appeals are filed by the appellants- CR.A/1307/2005 2/52 JUDGMENT original accused Nos.1 and 3 under the provisions of Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, inter-alia challenging the judgment and order of conviction and sentence dated 29/03/2005 passed by the learned Additional Sessions Judge, Valsad in Special (N.D.P.S.) No.2 of 2003. Total three accused persons were charge-sheeted and tried for the offence punishable under Sections 8(c), 22 and 29 of the Narcotics Drugs and Psychotropic Substance Act (hereinafter referred to as the “N.D.P.S. Act”) wherein at the end of trial all the accused persons were sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.50,000/- each and in default of making payment of fine to undergo simple imprisonment for one year. 2. Criminal Appeal No.1307 of 2005 is filed by the original accused No.1; whereas Criminal Appeal No.1598 of 2005 is filed by the original accused No.3. The Court is informed by the learned Advocates appearing for the parties, that original accused No.2 has not preferred any appeal challenging the judgment and order of conviction and sentence. 3. According to prosecution Rs.46,925/- had CR.A/1307/2005 3/52 JUDGMENT been recovered from the house of original accused No.1 and it was ordered to return the said amount to accused No.1 after expiry of the statutory period of filing an appeal. On the other hand, the respondent- State has not preferred the appeal under the provisions of Section 377 of the Code of Criminal Procedure for enhancement of sentence nor has submitted that cash recovered from the house of original accused No.1 requires to be confiscated to the State. 4. I have heard Mr.Devang Joshi, learned Advocate appearing for Mr.P.R.Nanavati for the appellant of Criminal Appeal No.1307 of 2005 and Ms.Ruppal Patel, learned Advocate appearing in Criminal Appeal No.1598 of 2005, as well as, Mr.Bhate, learned Addl. Public Prosecutor for the respondent-State. 5. To appreciate the rival side contentions, it would be beneficial to state the basic facts of the case of prosecution in brief. 5.1 It is alleged that Police Inspector, Mr.V.J.Joshi of Vapi G.I.D.C. Police Station, Dist: CR.A/1307/2005 4/52 JUDGMENT Valsad was discharging his duty on 24/01/2003 and present at the police station. He was informed at about 3:30 p.m., by P.S.I., Mr.Prakash Kanojia serving in District Valsad about the secret information received by him that original accused No.1-Faridabanu Sheikh, widow of Shamsad Ali Ismail Sheikh with her elder brother-in-law, Navsadali Ismailali Sheikh called original accused No.3-Ramesh Narayan-appellant of Criminal Appeal No.1598 of 2005 for selling brown sugar and possessing stock of brown sugar and the residence of original accused No.1 and that brown sugar has been sold from the residence of original accused No.1. According to prosecution, upon receiving information, Mr.Joshi, Police Inspector, recorded the said information in writing in the Police Station Diary vide Entry No.23 of 2003 and managed to send the copy of the same in a sealed envelope to the Deputy Superintendent of Police, Vapi in the form of report through Police Constable, Mr.Jinabhai Premabhai. That the information is with regard to narcotic drug and if the same is found then to carry out chemical analysis, it would be proper to call Scientific Officer and therefore one Mr.Patel, Scientific Officer was called telephonically in the evening at about 5:00 p.m. It is alleged that CR.A/1307/2005 5/52 JUDGMENT Mr.Patel had reached alongwith his examination kit and he was intimated about the information received. Two persons were selected as Panchas and therefore the house of the original accused No.1 was raided by P.S.I., Mr.Kanojia and Mr.D.N.Barad, Sunil A. Mishra and Mr.Omprakash Rambahadur, Armed Constables, and a Woman Police Constable, Usha Ajibhai. The Panchas were intimated and inter se search of persons who were to participate in the proceedings of search and seizure was made. A preliminary Panchnama in this regard was drawn between 5:00 and 5:30 p.m. Thereafter, the raiding team raided the residential house of original accused No.1. Initially, org. accused No.1 was called out of her house by calling her name and in response org. accused No.1 came out of her house. Thereafter, when she confirmed that she is Faridabanu Sheikh, widow of Shamsad Ali Ismail Sheikh, Woman Police Constable-Ushaben who was present in the raiding party, immediately went to Faridabanu and thereafter the Raiding Party had entered into the house for inspection. When they entered into the house, as per information of prosecution, two other persons were present and on inquiry it was found that they are the persons whose names were in the information received i.e. Navsadali CR.A/1307/2005 6/52 JUDGMENT Sheikh resident of Vapi, Ramnagar Sheikh, Market Chal and the other was Ramesh Narayan Bentaiya resident of Rayan, Dhobighat, Rali No.4, Hutment, Mumbai. Thereafter, Mr.Joshi, Police Inspector, introduced himself and other persons who were the members of the raiding party and all the three accused persons were informed about the information received by them orally as well as in writing. The accused persons were told that in view of the information received, they are required to be searched in person so if they desire to get themselves searched in presence of either a Gazetted Officer or Magistrate then they should express their desire. According to prosecution, the accused had insisted that they should be searched by any Gazetted Officer and in presence of the Magistrate. It is alleged that thereafter they were kept under Police surveillance and the Executive Magistrate (Mamlatdar), Pardi was requested to come to the spot i.e. residential house of org. accused No.1 and Mamlatdar, Pardi in capacity of Executive Magistrate, Mr.M.A.Chaudhri reached to the spot and thereafter the personal search of all the three persons were carried out. Firstly, the org. accused No.1 was searched and during that search with the help of Lady Constable, according to CR.A/1307/2005 7/52 JUDGMENT prosecution, the accused No.1 took out about 20 small packets of brown sugar from left side of her blouse and during interrogation and asking her, she had produced 40 small packets from the secret chamber of the bad of her house. That 31 packets of similar type were found from the pocket of Safari Suit worn by org. accused No.2-Navsadali. Thereafter, upon search of org. accused No.3 about 785 packets were found lying in a green coloured plastic bag and it is alleged that this bag was in possession of org. accused No.3. It is alleged that Mr.Joshi, P.I., and the other persons were prima-facie satisfied that substance found is brown sugar in powder form and the same was examined by the Scientific Officer, Mr.Patel. Upon carrying out test of chemical analysis by Mr.Patel, he opined that this powder was brown sugar and he prepared a report. Thereafter, the procedure of weighing of the muddamal brown sugar was carried out. The Police Constable present was asked to call a person with weighing scale etc., and one Ganeshbhai Bholaji Devasi, resident of L.R. Complex, Bazar Vapi of Marudhar Jewelers was asked to do the exercise of weighing the brown sugar found from the accused persons. According to prosecution, 91 packets found from the accused No.1 was 16.06 CR.A/1307/2005 8/52 JUDGMENT Grams and 785 packets found from accused No.3 was 133.97 Grams. A formal written certificate was obtained from the Gold Smith who was called to weigh the substance and different samples from the above packets were separated and sealed so that the same can be sent to F.S.L. for detailed examination and rest of the packets were sealed separately. It is alleged that according to prosecution the total value of the brown sugar was worth Rs.35,040/- and the substance thus was seized. It is further alleged that from the house of Faridabanu Sheikh, widow of Shamsadali Ismail Sheikh, cash of Rs.46,925/- was recovered from the cupboard, which was in the sitting room of her house and it is alleged that this amount was nothing but a sale amount made by her and therefore the said amount was also seized by Police. It is also alleged that one railway ticket and plastic bag found from accused No.3 and one telephone bill found from the residence of Faridabanu was recovered and seized alongwith the receipt of payment of telephone bill. Separate seizure memo of muddamal received from each of the accused was prepared and original was given to concerned accused person and on completion of this formality, second part of the Panchnama of carrying out the entire procedure was CR.A/1307/2005 9/52 JUDGMENT drawn. According to prosecution as all the three accused persons are found in commission of offence under a conspiracy, committed offence punishable under Sections 8 (C), 22 read with Section 29 of the N.D.P.S. Act by keeping illegally the stock of brown sugar in their possession for the purpose of sale and they were arrested at about 10:30 p.m. Thereafter, a detailed complaint came to be registered with Vapi G.I.D.C. Police Station. The F.S.L. opined that the Muddamal substance sent for analysis is a prohibited substance of a particular class falling in the category of brown sugar. So, on the basis of the above complaint, offence was registered and further investigation was taken over by Shri Joshi, P.I. In the meanwhile, the further investigation investigation was taken over by the then Dy. S.P., Shri Desai and at the end of investigation, on sufficient evidence found against the accused, the came to be charge-sheeted. 6. To prove the facts, the prosecution has examined 14 witnesses and has produced 26 documentary evidence. The details of the evidence led oral as well as documentary are reflected in paragraph 7 of the judgment and order under challenge. Of course, CR.A/1307/2005 10/52 JUDGMENT these details are also reflected in the memo of appeal and therefore it is not necessary to mention the details as to 14 witnesses examined. 7. The crucial documents which are required to be brought on record to bring home the charge, according to Mr.Bhate have been tendered in evidence and it would be beneficial to state the details of documents tendered as in evidence and to prove the case of prosecution. Sr.No. Detail Exhibit 1. F.S.L. Visit to the scene of offence 16 2. Letter of PSI, Valsad of secret information. 19 3. Panchnama of scene of offence 22 4. Report of F.S.L., Ahmedabad 26 5. Letter of examination of FSL, AHmedabad 27 6. Original letter of P.I., Vapi to register Offence 35 7. Receipt of Muddamal received of F.S.L., Ahmedabad 40 8. Letter of Dy.S.P., Vapi for sending back Muddamal 41 9. Letter of Dy.S.P., Valsad for keeping Muddamal 43 10. F.S.L. forwarding Note/Authority letter 51 11. Original Certificate of weighing off the muddamal given by witness Ganeshram Bholaji 54 12. Letter of seizure of Muddamal seized from accused Faridabanu. 55 CR.A/1307/2005 11/52 JUDGMENT Sr.No. Detail Exhibit 13. Letter of seizure of Muddamal seized from accused Naushadali Ismailali. 56 14. Letter of seizure of Muddamal seized from accused Ramesh Narayan 57 15. Letter of search/frisk of accused Faridabanu Samshadali. 58 16. Letter of search/frisk of accused Naushadali Ismailali. 59 17. Letter of search/frisk of accused Ramesh Narayan Pantaiya. 60 18. Extract of Vapi Udhyognagar Police Station Diary Entry No.23/03. 61 19. Extract of Vapi Udhyognagar Police Station Diary Entry No.25/03. 62 20. Original letter written to Dy.S.P., Vapi. 63 21. Original complaint 64 22. Letter given to Police Constable or FSL for Muddamal Sample and brown cover. 65 23. Letter of Reserve PSI, Police Head Quarters, Valsad. 66 24. Letter sent to FSL, Ahmedabad for examination of Muddamal 67 25. Telephone Bill in the name of husband of accused – Faridabanu. 68 26. Receipt of payment of telephone bill 69 (Documents Exh.68 and Exh.69 recovered from the house of accused No.1 establishing the occupancy of the house of having telephone facility) 8. On plain reading of the judgment and order under challenge, it is clear that the learned Advocate appearing for the original accused Nos.1 and 2 were heard in detail. Ld. Advocate appearing for the original accused No.1 was heard on 15/03/2005 and CR.A/1307/2005 12/52 JUDGMENT on that day a written submission of accused No.3 at Exh.77 was tendered. On 07/03/2005, ld. Advocate appearing for original accused No.2 had made detail submissions. There is no dispute even today before this Court that learned trial Judge has faithfully recorded the each submissions made by the accused persons and learned trial Judge has attempted to deal with each legal as well as factual submissions. 9. According to Mr.Devang Joshi, learned Advocate for the appellant of Criminal Appeal No.1307 of 2005, the learned trial Judge has committed serious error in evaluating the evidence and has ignored certain relevant legal aspects. Of course, he has taken me through the entire set of evidence oral as well as documentary led by the prosecution, more particularly the inconsistency or conflict in evidence of the witnesses examined. It is submitted that the learned trial Judge has not considered the scheme of Section 32 of the N.D.P.S. Act and no formality was carried out by Mr.Joshi, Police Inspector though he house of the accused No.1 raided after sunset. It is submitted that prosecution has made false attempt to establish that the raid was carried out before the sunset but the circumstance CR.A/1307/2005 13/52 JUDGMENT speaks that raid was carried out after sunset. So, the entire process of search and seizure being not legal and should be viewed with doubt. Of course, in response to the query raised by the Court, Mr.Joshi has fairly accepted that the Police Officer heading the raiding party, was a Gazetted Officer and was authorized to carry out the search without issuance of warrant and on subjective satisfaction on the strength of the information received by him. The second point of submission of Mr.Joshi is that there is inconsistency as to weight of the brown sugar found from the accused Nos.1, 2 and 3 and the figures stated by the prosecution does not tally exactly with the figure mentioned in the F.S.L. Report and this inconsistency makes the case of prosecution more doubtful as to recovery of the said muddamal from each of the accused persons and for that he has drawn the attention of the Court to following figures reflected in different documents viz.,Panchnama Exh.22, F.S.L. Report, Ahmedabad Exh.26 and Railway Ticket of 24/01/2003 bearing No.45450903 from Boriwalli to Vapi recovered during the raid relied upon by the prosecution. i. According to P.W. No.1-Jayeshbhai Dhirubhai Patel, Scientific Officer, CR.A/1307/2005 14/52 JUDGMENT examined at Exh.15, 91 small packets were of 16.06 gms and other 785 small packets were of 133.98 gms. Whereas, in the form as to description of these packets, it is mentioned as 15 Milligrams at one place and at other two places it is mentioned as 17.5 Milligrams. ii. As per Prosecution Witness No.5- Janmahmad Fakirbhai Mansuri, examined at Exh.25, weight of muddamal received for analysis by F.S.L., Ahmedabad / Gandhinagar for Sample A-1 was of 1.510 Grams and weight of Sample B-3 was 4.070 Gms and both these quantities were packed separately. iii. As per Prosecution Witness No.12-Shri Mansinh Amarsinh Chaudhry, Mamlatdar, examined at Exh.48, on weighing 91 packets were of 16.06 gms and remaining 85 packets were of 133.98 gms. iv. As per the report of F.S.L., Ahmedabad (Exh.26), the weight of muddamal brown sugar was of 1.570 gms and in parcel B-III it was 4.070 gms. The above figures according to Mr.Joshi, learned CR.A/1307/2005 15/52 JUDGMENT Advocate for the accused, were required to be considered when there is nothing on record to show that how and by whom the samples were separated from the entire stock. There is also ambiguity as to the total weight of the butter papers in which the brown sugar was alleged packed. 10. It is argued that on probabilities the story of the prosecution is not required to be accepted as true because it is difficult to believe that in the house of accused No.1, accused No.3 was permitted to carry a plastic bag in his hand till the Mamlatdar reached, as alleged by the prosecution. On the contrary, it appears that the Mamlatdar was asked to reach to the house of the accused No.1 well in advance and therefore only he was available at the spot of search and seizure, otherwise there was no reason for the Mamlatdar to remain present in his office after office hours. It appears to be a stage managed show. It is very probable that original accused No.3 might have been intercepted and on recovery of prohibited substance the Police may have arranged to falsely implicate the original accused Nos.1 and 2 in the crime. CR.A/1307/2005 16/52 JUDGMENT 11. It is argued that provisions of Section 50 have been ignored which requires to be followed scrupulously. The entire recovery of muddamal during physical search of accused Nos.1 and 2 appear to be cock and bull story. On the contrary, it is possible to infer that all the three accused persons were searched and as the Police found that their case may be destroyed because search was carried out in violation of Section 50 of the N.D.P.S. Act, the presence of Mamlatdar had been worked out. So from both the angles when it is possible to infer that presence of Mamlatdar was prearranged, the search and seizure becomes doubtful or if it is found that Mamlatdar might have been called after carrying out subsequent search and seizure then also the accused could have been given advantage on account of violation of scheme of Section 50 of the N.D.P.S. Act. 12. According to Mr.Joshi, it is settled legal position that scheme of Section 50 is a mandatory and if the prosecution is not in a position to establish that scheme of Section 50 of the N.D.P.S. Act was followed scrupulously, the advantage would go to the accused. Mr.Joshi has drawn attention to the CR.A/1307/2005 17/52 JUDGMENT inconsistency of the evidence of the prosecution witnesses and has pointed out as under: i. Prosecution Witness No.1-Jayesh, Scientific Officer has received telephone call from Mr.Joshi, Police Inspector at about 15:30 hours and therefore he had reached to Vapi G.I.D.C. Police Station at 17:00 hours. The prosecution has not explained as to how an Independent Officer was made aware about the secret information at 15:30 hours. ii. The Prosecution Witness No.12-Shri Mansinh Amarsinh Chaudhary, examined at Exh.48 has deposed that he had received telephonic message on 24/01/2003 from Mr.Joshi, Police Inspector of Vapi G.I.D.C. Police Station at about 5:45 p.m., and thereafter he had reached to the house of the accused No.1 at about 6:30 hours. According to this witness, the search of the house and personal search of the accused was carried out in his presence, but when the signature of the Executive Magistrate is not found on Muddamal Articles No.9, though the CR.A/1307/2005 18/52 JUDGMENT signature is found on Article – 3, his presence at the spot at the time of carrying out the personal search emerges as doubtful and he has deposed that his signature is also not found at Muddamal Article No.10. iii. According to Prosecution Witness No.14-Mr.Joshi, Police Inspector, examined at Exh.53, members of the raiding party had reached to the house of accused No.1 including the Scientific Officer. This appears to be physically not possible considering the distance between the Police Station and the residential house of the accused No.1. Because the Station Diary shows that the raiding party had started for the destination at 17:30 hours and the secret information was received much prior to 17:30 hours. The Higher Officers were informed and signature of Dy. S.P. was also obtained on the report submitted to him and in that document time is mentioned as 15:30 hours. Hence, this creates impression that calling of Executive Magistrate at the spot looks like a formality as such the CR.A/1307/2005 19/52 JUDGMENT circumstance speaks that search of the house and personal search of the accused must have been carried out much earlier to the arrival of the Executive Magistrate. Surprisingly when there are no signature on seizure memos either of Panchas or the Executive Magistrate and there is no mentioned of time in the seizure memo, copy of which were allegedly given to the each accused is reflection of the material irregularity committed and this inconsistency has been ignored by the learned trial Judge is the backbone of the submission of Mr.Joshi while advancing the argument on the strength of scheme of Section 50 of the N.D.P.S. Act. 13. It is also argued that this Court should also consider the material improvements made by the Police Officers only with a view to get some more strength in the case relied upon by the prosecution. A witness who intends to improve should be scanned very closely. Ultimately, all the Police Officers examined by the prosecution are partition witnesses and they were interested to resolve the case. It is accepted fact that in a cases under N.D.P.S. Act, if CR.A/1307/2005 20/52 JUDGMENT the catch is big, the Officer either gets appreciation from the Department or even price or reward from the Department. So, in the present case, maximum Officers of Vapi G.I.D.C. Police Station had attempted to encash the prestige and popularity. 14. Mr.Joshi has fairly accepted that the case placed by prosecution is serious but according to him evidence led by the prosecution appears to be very week and insufficient to link the accused with the crime in above speaking circumstances. The original accused No.1 could have been given benefit of doubt especially when there was some more evidence against accused No.3 only. When the prosecution has not established satisfactorily the inter se relationship between the accused Nos.3 and 1 and when accused No.2 has not preferred any appeal and has accepted the order of conviction and sentence at least this Court should give benefit of doubt to original accused No.1. 15. It is submitted by Mr.Joshi that the accused persons have been convicted for the offence punishable under Section 29 of the Act and the accused were never given the opportunity to face the CR.A/1307/2005 21/52 JUDGMENT charge of the offence punishable under Section 21 of the Act. If the Court finds that the accused were really required to be charged for the offence punishable under Section 21 of the Act then the conviction should be held as bad and for this purpose the learned Judge ought to have considered the distinction made under the law between the 'Drug' and 'Psychotropic Substance'. 16. It is also submitted by Mr.Joshi that the accused persons could have been given the benefit of observations made by the Supreme Court in the case of "State of Punjab v. Baldev Singh" reported in 1999 CRI. L. J. 3672 and more particularly the observations made in paragraph 13 of the judgment. It would be beneficial to reproduce the relevant part of the judgment relied on by Mr.Joshi. “13. Vide Section 51, the provisions of the Code of Criminal Procedure, 1973, shall apply, insofar as they are