CR.A/500/2002 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 500 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 ? ========================================================= BHIMSING @ RAMSING PARAGSING - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR NK MAJMUDAR appointed by Legal Aid Committee for Appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date :01/02/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/500/2002 2/33 JUDGMENT 1. The appellant ('the accused' for short) along with another accused, Kishanbhai Laljibhai Chavda, who is not before this Court, were tried by the learned Presiding Officer, Fast Track Court, Nadiad, in Special (NDPS) Case No.4 of 2001 for commission of the offence punishable under Section 17 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ('the NDPS Act' for short) arraigned on the charge of the accused having been found with contraband article 'opium' weighing 4 Kg. 720 grams and another accused, Kishanbhai Laljibhai Chavda, having been found with contraband article 'opium' weighing 12 grams, without pass or permit, when they were intercepted and apprehended near four junction road, Nainpur, by P.W.6, Pratapsinh Udesinh Raul, Police Inspector, LCB, and other police personnel, during watch and blockade for effective implementation of prohibition. At the end of the trial, the accused and Kishanbhai Laljibhai Chavda were found guilty of the offence with which they were charged and as their complicity is proved, the trial court convicted CR.A/500/2002 3/33 JUDGMENT both of them vide judgment and order dated 5.4.2002 and sentenced the accused 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 one year whereas another accused, Kishanbhai Laljibhai Chavda, is ordered to suffer R.I. for six months and fine of Rs.2,000/- and in default of payment of fine, R.I. for further period of two months. 2. Aggrieved by the aforesaid judgment and order of conviction and sentence, the accused has filed this appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short). 3. Briefly stated, the prosecution case as disclosed from the FIR and unfolded during trial, is as under: 3.1. On 4.7.2001, Pratapsinh Udesinh Raul, Police Inspector and other police personnel were on duty at Nainpur Cross Roads where they arranged a blockade for effective implementation CR.A/500/2002 4/33 JUDGMENT of prohibition and were keeping a watch on the road. At that time the accused and another accused Kishanbhai were found coming from village Nainpur. The accused had a bag in his hand. On seeing the police, both these persons hesitated to come forward and turned back, which raised suspicion in the minds of the police personnel and, therefore, they were intercepted. P.W.6, Pratapsinh Raul, noticed that something was there in the bag which was in the hand of the accused. Immediately two panchas were called for carrying out search on the person of the accused. Name and address of the accused was asked. The accused was also asked as to what was in the bag to which he replied that it was opium. Pratapsinh Udesinh Raul introduced himself and other police personnel to both the accused and told them that he wants to search their person and if they wish to be searched in presence of a gazetted officer or a magistrate, he would make necessary arrangement for the same but the accused did not opt for the same and told that P.W.6 may search them and, therefore, P.W.6, Pratapsinh searched CR.A/500/2002 5/33 JUDGMENT their person and during the search, opium was recovered from four plastic bags in a cloth bag carried by him. The name and address of another accused Kishanbhai was also asked and he was also searched by P.W.6, Pratapsinh Udesinh Raul, as he also did not opt to be searched in presence of a gazetted officer or a magistrate. On search, a currency note of Rs.20 denomination and a plastic bag were found from the left side pocket of his shirt. There was also another plastic bag containing opium in liquid form. As opium is a contraband substance, both the accused were asked to show the permit or pass for carrying opium, which they could not produce and, therefore, the opium was taken to a nearby shop for weighing and on weighing, it was found that the accused was carrying 4 Kg. 720 grams of opium in the bag whereas another accused Kishanbhai was carrying 12 grams of opium in a small plastic bag. An officer from the FSL was called for making preliminary examination to ascertain as to whether the substance recovered from the accused was opium or not and on preliminary examination CR.A/500/2002 6/33 JUDGMENT it was found to be opium. A sample was taken from the opium which was recovered from the accused and placed it in a tin box and sealed after due procedures. The opium recovered from another accused Kishanbhai was also placed in a tin box and sealed after due procedures. A panchnama was prepared narrating the procedures followed before the panchas. 3.2. A complaint in respect of the aforesaid incident was filed against the accused and another accused Kishanbhai by P.W.6, Pratapsinh Udesinh Raul, before LCB, Kheda where it was registered by Kishanbhai Manibhai, P.S.O. which is on record at Ex.22. On filing of the complaint, investigation was handed over to P.W.7, Ramsinh Fulsinh Dabhi, PSI, Mehmedabad Police Station, Ex.29. 3.3. On taking over the investigation by P.W.7, RF Dabhi, PSI, he received the muddamal, recorded the statements of the witnesses, obtained necessary permission from his higher CR.A/500/2002 7/33 JUDGMENT official to send the muddamal to FSL for chemical analysis and handed over the muddamal to P.W.5, Ravjibhai Ishwarbhai, Ex.19, to deliver it at the FSL for analysis and on receipt of the report from FSL certifying that the muddamal sent for chemical analysis was opium, P.W.7, RF Dabhi, filed charge-sheet against the accused and another accused Kishanbhai for commission of the offences punishable under sections 17 and 29 of the NDPS Act in the Sessions Court (Special Court) Kheda at Nadiad. 3.4. The learned Presiding Officer and Fast Track Court, Nadiad to whom the case was made over for trial, framed charge against the accused which was read over and explained to them. As the accused and another accused Kishanbhai pleaded not guilty to the charge and claimed to be tried, they were put to trial in Special (NDPS) Case No.4 of 2001. 3.5. To prove the culpability of the accused, the prosecution has examined and relied upon the CR.A/500/2002 8/33 JUDGMENT oral testimonies of seven witnesses, the details of which are given in para 6 of the impugned judgment and order. They are as under: P.W. No. Name Ex. No. Page No. 1 Rameshbhai Dhulabhai Patel, panch witness 10 103- 110 2 Chhotabhai Chandabhai Dabhi, Panch witness 13 121- 128 3 Prakashbhai Mafatbhai Patel, shopkeeper 17 135- 138 4 Kishanbhai Manibhai, Head constable 18 139- 142 5 Ravjibhai Ishwarbhai, Police constable 19 143- 144 6 Pratapsinh Udesinh Raul, PI, LCB 21 147- 158 7 Ramsinh Fulsinh Dabhi, I.O. 29 187- 192 3.6. To prove the case against the accused, the prosecution has also produced a number of documents, details of which are mentioned in para 6 of the impugned judgment and order. They are as under: CR.A/500/2002 9/33 JUDGMENT Sr. No. Description Ex. No. Page No. 1. Panchnama 11 113- 118 2. Complaint 22 159- 164 3. Letter written by PU Raul for filing complaint 23 165- 168 4. Receipt issued with regard to recovery of muddamal from the accused 24 169- 170 5. Letter written by P.U. Raul to DSP 25 171- 172 6. Letter written by the officer of FSL 26 173- 176 7. Letter written to FSL for analysis of muddamal 27 177- 180 8. Receipt regarding receiving of muddamal at FSL for analysis 28 181- 186 9. Covering letter written regarding receipt of FSL report 20 145- 146 10. Letter from FSL 32 201- 210 11. Letter from FSL 33 211- 212 12. Letter from FSL 34 213- 214 3.7. 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 CR.A/500/2002 10/33 JUDGMENT prosecution witnesses and recorded their further statement under Section 313 of the Code. In their further statement they denied the case of the prosecution in toto. The accused has further stated that Pratapsinh Raul took him from the four junction saying that he shall be paid Rs.1500/- per month and also food and clothes and made him to sit in the police custody saying that he would be released the next day. Thereafter he filed a false case. However, the accused neither led any evidence nor did they examine any witness to support their defence. 3.8. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial court held that the prosecution has established, beyond reasonable doubt, that on 4.7.2001 the accused was found with contraband article 'opium' weighing 4 Kgs. 720 grams, and another accused Kishanbhai was found with contraband article 'opium' weighing 12 grams, without pass or permit, when they were intercepted and apprehended at the cross roads of CR.A/500/2002 11/33 JUDGMENT Nainpur, by P.W.6, Pratapsinh Udesinh Raul, PI, LCB and as they were found guilty of the offences with which they were charged, the trial court convicted them vide judgment and order dated 5.4.2002 for commission of the offence punishable under Section 17 of the NDPS Act and accordingly imposed sentence on them to which reference is made in earlier paragraph of this judgment, which has given rise to instant appeal at the instance of original accused No.1 only whereas accused No.2 has not chosen to file appeal against the impugned judgment and order and, therefore, in this appeal, we have to examine the case of original accused No.1 only. 4. Mr. N.K. Majmudar, learned advocate appointed by the Legal Aid Committee for the accused, has contended that the prosecution has examined the police personnel who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non-compliance of the provisions of NDPS Act, the prosecution evidence cannot be CR.A/500/2002 12/33 JUDGMENT relied upon and cannot be acted upon. It is also contended by him that the prosecution has failed to establish the fact that the muddamal contraband article reached the FSL intact and there was possibility of tampering with the muddamal on its journey from the time of seizure and filing of the complaint till it reached to the FSL. According to Mr. Majmudar, there is non- compliance of the provisions of section 50 of the NDPS Act. The trial court has erred in holding that the muddamal opium was properly and legally handled and it was not tampered with till it reached at FSL in sealed intact condition. On the aforesaid premises, it is submitted by him that the prosecution has failed to establish the charge levelled against the accused beyond reasonable doubt and, therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which he was charged. He, therefore, urged to allow the appeal. CR.A/500/2002 13/33 JUDGMENT 5. In counter submission, Mr. KT Dave, learned APP, has submitted that by voluminous evidence produced by the prosecution, the complicity of the accused is proved beyond reasonable doubt. The accused was found and caught red-handed with contraband article opium when he was intercepted by P.W.6, Pratapsinh Udesinh Raul, Ex.21 and other police personnel. He has also submitted that after following and observing the mandatory and statutory provisions contained under the NDPS Act, the contraband article was seized and sealed in presence of the police personnel as well as panchas. It is also submitted by him that the report of FSL in terms certified that the contraband article which was sent for analysis was opium. It is asserted by him that the prosecution has successfully established that the sample sent to FSL was not tampered with during the course of its journey from the stage of seizure and filing of the complaint till reaching at FSL. On the aforesaid premises, according to Mr. Dave, learned APP, the prosecution has established the CR.A/500/2002 14/33 JUDGMENT case against the accused 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 call for any interference of this court in this appeal and as the appeal lacks merit, it deserves to be dismissed. He, therefore, urged to dismiss the appeal. 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 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 CR.A/500/2002 15/33 JUDGMENT 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 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: CR.A/500/2002 16/33 JUDGMENT “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 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”. CR.A/500/2002 17/33 JUDGMENT 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 Inspector during the course of search of the accused and seizure of the muddamal, contraband article, opium. 10. In this connection, we shall first refer to the testimony of P.W.6, Pratapsinh Udesinh Raul, P.I. LCB, Ex.21, at pages 147-158 of the paper book. P.W.6, Pratapsinh Udesinh Raul, PI, has, inter alia, testified that on 4.7.2001, he and other police personnel were on duty at Nainpur Cross Roads where they arranged a blockade for effective implementation of prohibition and were keeping a watch on the road. At that time the accused and another accused Kishanbhai were found coming from village CR.A/500/2002 18/33 JUDGMENT Nainpur. The accused had a bag in his hand. On seeing the police, both these persons hesitated to come forward and turned back which raised suspicion in the minds of the police personnel and therefore they were intercepted. He noticed that something was there in the bag which was in the hand of the accused. Immediately two panchas were called for carrying out search on the person of the accused. Name and address of the accused was asked. The accused was also asked as to what was in the beg to which he replied that it was opium. Thereafter he introduced himself and other police personnel to both the accused and told them that he wants to search their person and if they wish to be searched in presence of a gazetted officer or a magistrate, he would make necessary arrangement for the same and as the accused did not opt for the same, he made search and found four plastic bags in a cloth bag carried by the accused from which opium in liquid form was recovered. The name and address of another accused Kishanbhai was asked and he was also searched by him, as he also did not opt CR.A/500/2002 19/33 JUDGMENT to be searched in presence of a gazetted officer or a magistrate. On search, a currency note of Rs.20 denomination and a plastic bag were found from the left side pocket of his shirt. There was also another plastic bag containing opium in liquid form. As opium is a contraband substance, both the accused were asked to show the permit or pass for carrying opium, which they could not produce and, therefore, the opium was taken to a nearby shop for weighing and on weighing it was found that the accused was carrying 4 Kg. 720 grams of opium in the bag whereas another accused Kishanbhai was carrying 12 grams of opium in a small plastic bag. An officer from the FSL was called for making preliminary examination to ascertain as to whether the substance recovered from the accused was opium or not and on preliminary examination it was found to be opium. A sample was taken from the opium which was recovered from the accused and placed it in a tin box and sealed after due procedures. The opium recovered from another accused Kishanbhai was also placed in a tin box and sealed after due CR.A/500/2002 20/33 JUDGMENT procedures. A panchnama was prepared narrating the procedures followed before the panchas. A complaint in respect of the aforesaid incident was filed against the accused and another accused Kishanbhai by him before LCB, Kheda where it was registered by Kishanbhai Manibhai, P.S.O., which is on record at Ex.22. In short, he has deposed as per the complaint lodged by him, which is on record at Ex.22, at pages 159-164 of the paper book. A perusal of the complaint at Ex.22, shows that oral testimony of the complainant gets corroboration from the complaint and there is no contradiction between the complaint and the oral testimony of P.W.6, Pratapsinh Udesinh Raul. It is also mentioned in the complaint about the strict compliance of the provisions of Section 50 of the NDPS Act. It may be noted that P.W.6, PU Raul, was cross-examined by the learned advocate for the accused and a lot of suggestions were made with regard to non-compliance of the statutory and mandatory provisions contained under the NDPS Act. However, he repelled all such suggestions and he stuck to the statement that CR.A/500/2002 21/33 JUDGMENT all the statutory and mandatory provisions of the NDPS Act as required were followed. This witness has successfully withstood the test of cross- examination and nothing substantial has been brought out during his cross-examination which would impeach his credibility. 11. The prosecution has thereafter examined and relied upon the evidence of P.W.4, Kishanbhai Manibhai, a Head Constable, Ex.18, at pages 139- 142 of the paper book. It may be appreciated that this witness has inter alia testified that on 4.7.2001 he was PSO of Mehmedabad Police station. At that time P.W.6, Pratapsinh Udesinh Raul, PI, LCB, lodged complaint before him on behalf of the State of Gujarat against the accused for commission of the offences under the NDPS Act. This witness has thereafter entrusted the muddamal to P.W.7, Ramsinh Fulsinh Dabhi, Investigating Officer, Ex.29. He has also testified that he has issued the muddamal receipt and made necessary entries in this regard in the CR.A/500/2002 22/33 JUDGMENT station diary. He has testified that he received the muddamal in sealed intact condition. 12. The prosecution has thereafter examined and relied upon the oral testimony of P.W.5, Ravjibhai Ishwarbhai, a police constable, Ex.19, at pages 143-144 of the paper book. He has inter alia testified that he had handed over the muddamal, which was entrusted to him, at FSL, Ahmedabad on 6.7.2001, personally. 13. The prosecution has thereafter examined and relied upon the oral testimony of P.W.7, Ramsinh Fulsinh Dabhi, PSI, investigating officer, Ex.29, at pages 187-192 of the paper book. He has inter alia testified that he had sent the muddamal to FSL for analysis. 14. All the above mentioned witnesses i.e., P.W.Nos. 4, 5 and 7, were cross-examined by the learned advocate for the accused but nothing substantial has been brought out from their CR.A/500/2002 23/33 JUDGMENT cross-examination which would impeach their credibility. These witnesses withstood the test of cross-examination and stuck to the same version with regard to the role played by them at the time of interception, seizure and sealing of the muddamal and sending the muddamal to FSL and nothing substantial has been brought out from their cross-examination which would impeach their credibility. 15. The prosecution has thereafter examined P.W.1, Rameshbhai Dhulabhai Patel, Ex.10, at pages 103-110 of the paper book and P.W.2, Chhotabhai Chandabhai Dabhi, Ex.13, at pages 121- 128 of the paper book. They are panch witnesses. They have inter alia testified that the panchnama was prepared in their presence. Both of them have testified that they were called by the police and, therefore, they remained present as panchas to the panchnama when the accused were caught red-handed with contraband article opium and they have stated that in their presence muddamal CR.A/500/2002 24/33 JUDGMENT article opium was recovered from the accused. Both these panch witnesses have during their cross-examination stated that in their presence P.W.6, Pratapsinh Udesinh Raul, had given option to the accused as to whether they would like to be searched in presence of a gazetted officer or a magistrate or they would like him to search them and the accused opted that P.W.6 himself may search them and, therefore, P.W.6 searched the accused and hence from the evidence of both these panch witnesses it is clear that the mandatory and statutory provision contained under section 50 of the NDPS Act have been duly complied with and adhered to and the said aspect has been reflected in the panchnama Ex.11, at pages 113- 118 of the paper book. 15.1. Both these witnesses were cross- examined by the learned advocate for the accused but nothing substantial could be brought out to impeach the credibility of their testimonies. CR.A/500/2002 25/33 JUDGMENT 16. The prosecution has thereafter examined and relied upon the oral testimony of P.W.3, Prakash Mafatbhai Patel, a shopkeeper, Ex.17, at pages 135-138 of the paper book.