IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 165 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JAINUDDIN @ DILO AMIRBHAI ANSARI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 165 of 1999 MR NB TIWARI for Petitioner No. 1 MR IM PANDYA, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE A.L.DAVE Date of decision: 17/12/2003 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out a judgment and order rendered by learned Additional City Sessions Judge, Court No.13, Ahmedabad, in Sessions Case No.268 of 1997, on 23rd December, 1998, recording conviction of the appellant under Section 8(C) read with Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short) and sentencing him to undergo rigorous imprisonment for a period of 11 years and to pay a fine of Rs.1 lakh, and, in default, to undergo further rigorous imprisonment for one year. 2. The prosecution case is that, on 21st August, 1997, at about 10.30 hours, P.W. No.2-Tarunkumar Amratlal Barot (Ex.13), while he was Police Inspector, D.C.B. Crime Branch, Ahmedabad, received an information through Police Head Constable-Gopalsing Nathusingh and Abdul Majid that one Jainuddin alias Dilo Ansari, resident of Vatwa, is to go to one Govindsinh Rajput, staying near Khodiyarnagar Chhapra with a quantity of charas. P.W.2, therefore, directed Constable-Abdul Majid to summon Panch witnesses and sent an intimation to his superior officer in writing by confidential outward No.100/97 T.A.B. and kept the office copy along with the case papers. The said communication was prepared in the hands of Writer-Mahendrasing. 2.1 After Abdul Majid summoned the Panch witnesses, they were informed about the secret information. Police Sub-Inspector, Shri B.K. Jhala, Shri Rajput, Police Constable Bhaskar, Mahendrasing, etc. were intimated about the information given by Gopalsing and Police Constable, Abdul Majid. Thereafter, a mutual search and search of Government vehicles No.159 and 256 were conducted and no contraband was found. A preliminary Panchnama was prepared in this regard and an entry was made in the Police Station Diary. Thereafter, the team left in the vehicles towards the place in question and arranged a watch. After some time, a man was noticed walking towards them. He was identified as Jainuddin alias Dilo by Police Constable-Abdul Majid. The said person had a bag in his hand. His right hand was bandaged. When he came near to the officers, he was intercepted and was told that they are officers of Narcotic Cell and he is required to be searched for possession of contraband charas. He was asked whether he wanted to be searched in presence of a Magistrate or another Gazetted Officer, to which he denied and said that he has faith in the officers. The person was also give a Yadi in writing intimating him about this right of exercising option of being searched in presence of a Magistrate or a Gazetted Officer. Acknowledgement from the suspect was obtained on carbon copy and signatures of Panch witnesses were also obtained. Thereafter, the person of the suspect was searched and an amount of Rs.140/- was found from the pocket of his shirt. The Khakhi cloth bag that he was carrying in his hand was heavy. It was taken from him and opened in presence of Panch witnesses. It was found to carry a plastic bag containing black coloured candle shaped pieces. On being tested, the pieces were found to carry a smell like that of charas. F.S.L. Officer was summoned. Likewise superior officer, Shri N.R. Parmar was also intimated. Police Constable-Takhtsinh was sent to bring a weighing scale, who returned with one witness, namely, Rameshbhai, with weighing scales. The said witness-Rameshbhai was explained that a quantity of contraband was seized from the suspect-accused, which is to be weighed. He, therefore, weighed the contraband and it was found to weigh 3.200 kgs. comprising of 70 candle shaped pieces. In the meantime, the Officer of F.S.L., Shri Sharma, who had arrived, took out a quantity of about 20 grams from all the pieces and undertook the tests. He opined the material to be Charas on preliminary examination. The segregated 20 grams of charas was divided into two parts of 10 grams each and out of those two parts, one part was kept as sample for analysis for being sent to F.S.L. whereas the other part was kept as reserve sample. The two samples were placed into two separate small polyethylene bags, which were heat sealed and then placed into two tins of Jafrani Patti. Thereafter, slips containing signatures of the Panch witnesses as well as the raiding officers were wrapped on the tins and tied with thread and then were wax sealed. The remaining quantity was placed into an aluminium tin after putting the same into a heat sealed polyethylene bag. The contraband was then seized and memo in this regard was prepared and handed over to the suspect. His acknowledgement was also obtained on the office copy (Mark 10/6). The suspect was asked about his having any pass or permit for possessing charas, to which he denied. A detailed Panchnama in this regard was prepared and concluded after the seizure. The accused was arrested and was given a written intimation after obtaining his acknowledgement in the form of his signature on the copy. The accused and the contraband muddamal were brought to the Police Station, i.e. Crime Branch, and an F.I.R. (Ex.16) was lodged by the raiding Officer, Mr. Barot. An entry was made in respect of this offence. Muddamal Pavti was prepared. The muddamal was handed over to Crime Writer Head, Vishnuprasad. The investigation was handed over to P.S.I. Rajput. A special report regarding arrest and seizure was prepared and was sent to superior officers. The muddamal sample was despatched for analysis to F.S.L. Ultimately, having received the information from the F.S.L. expert that the contraband was charas, charge sheet was filed against the present appellant-accused (hereinafter referred to as "the accused"). After due formality, charge was framed against the accused at Ex.4. The accused pleaded not guilty to the charge and claimed to be tried (Ex.5). 2.2 The trial was conducted and the learned Additional City Sessions Judge, after considering the evidence on record, came to a conclusion that the prosecution could successfully establish the charges against the accused and, therefore, recorded conviction and passed the sentence of punishment, as stated above. Aggrieved by the said judgment and order, present appeal is preferred by the accused. 3. Learned Advocate, Mr. N.B. Tiwari, for the appellant submitted that the Trial Court has committed an error in appreciating the evidence on record in light of the settled legal propositions. He submitted that there are multiple defects in the prosecution case which are ignored by the Trial Court to the detriment of the accused. He submitted that there is non-compliance of requirements of Section 50 of the NDPS Act, inasmuch as, the accused was not informed of his right of exercising an option of being searched in presence of a Magistrate or another Gazetted Officer, although that option was offered to him. He submitted that, in light of the decisions of the Apex Court in the case of State of Punjab v. Baldev Singh, AIR 1999 SC 2378, Vinod v. State of Maharashtra, 2003 SCC Criminal 14 and Beckodan Abdul Rahim v. State of Kerala, 2002 SCC Criminal 791,, the suspect is required to be intimated about his right to exercise the option and mere offering the option is not sufficient. 3.1 Mr. Tiwari submitted that from a different angle also, there is noncompliance of requirement of Section 50 in the sense that the accused is a non-Gujarati, Hindi speaking person. The entire search and seizure proceedings, including offering of option was conducted in Gujarati and, therefore, for all practical purposes, there is non-compliance of Section 50 of the NDPS Act. 3.2 Mr. Tiwari submitted that the prosecution has tried to improve its case by adding in evidence that the proceedings were explained to the suspect in Hindi at the time of the search and seizure, whereas contemporaneous material or record does not indicate that aspect and, therefore, giving of option, even if considered proper, is not sufficient so far as the accused is concerned and it amounts to non-compliance of requirement of Section 50 of the NDPS Act. 3.3 Mr. Tiwari submitted that, apart from the above defects, there is discrepancy in quantity of sample of muddamal seized and sent for analysis to the F.S.L. He has drawn attention of this Court to the fact that samples of 10 grams were drawn and sealed, one of which was sent to F.S.L. The F.S.L. receipt indicate that the sample received weighed only 3.67 grams. Mr. Tiwari, therefore, submitted that there is a loss of about 64% in the muddamal. He submitted that this indicates possibility of tampering of muddamal. 3.4 Mr. Tiwari submitted that there is a difference and discrepancy in the seal claimed to have been used by the raiding Officer. He has drawn attention of this Court to deposition of P.W.2-Mr. Barot, where he describes the seal applied on the samples. Mr. Tiwari has drawn attention of this Court to the description in the seal indicated in the F.S.L. report and demonstrated that there is discrepancy about the writings on the seal. He submitted that this also indicates tampering of muddamal. He submitted that both reduction in quantity of muddamal as well as discrepancy in the nature of seal should collectively raise sufficient doubt in the mind of the Court to give benefit of doubt to the accused. Mr. Tiwari submitted that, in light of these contentions, the Trial Court could not have recorded a conviction. 3.5 It is contended by Mr. Tiwari that witness-Abdul Majid, who gave the information and who as a member of the raiding party, had firstly identified and introduced the accused, has not been examined by the prosecution and there is discrepancy about the vocation of witness-Reameshbhai, who is claimed to have weighed the contraband as to whether he is a goldsmith or Namkeen merchant. He, therefore, urged that the appeal may be allowed and the order of conviction and sentence may be set aside. He has placed reliance on certain decisions, which shall be discussed in the paragraphs to follow. 4. Learned Additional Public Prosecutor, Mr. Pandya, has opposed this appeal. According to him, the Trial Court has considered all relevant aspects in light of the settled proposition of law. Mr. Pandya has drawn attention of this Court to Ex.43 and submitted that there was substantive compliance of Section 50 of NDPS Act. The text of Ex.43 would indicate that the accused had followed or understood and had chosen not to exercise the option by showing faith. This means that the accused understood Gujarati language. 4.1 By way of additional submission, Mr. Pandya submitted that the accused, though a Hindi speaking non-Gujarati, is resident of Vatwa, Ahmedabad and is serving in Ahmedabad and absence of any agitation either during search and seizure or during the trial in this regard would necessarily lead to an inference that the accused knew Gujarati, though he may be a 'Hindi speaking' person. 4.2 Mr. Pandya contended that the suspect is not required to be intimated about his right of exercising option in view of the fact that, in the instant case, the search and seizure was prior to the date of the judgment of the Apex Court in the case of State of Punjab v. Baldev Singh (supra). The Officer, therefore, was not aided by the decision of the Constitution Bench and, therefore, affording an opportunity to exercise option is a substantive and sufficient compliance of Section 50. 4.3 As regards the allegation regarding tampering of muddamal, Mr. Pandya submitted that the F.S.L. expert is examined at Ex.8 and no suggestion is made regarding tampering of seal of the muddamal in question. The witness has, in terms, stated both in the report as well as in the deposition that the muddamal sample was received in an intact and sealed condition. Mr. Pandya submitted that the allegation regarding tampering of muddamal, therefore, may not be accepted. 4.4 Mr. Pandya submitted that requirements of Section 57 of the NDPS Act regarding making of report in writing to immediate superior are complied with which would make the proceedings reliable. The accused is involved in a serious offence and, therefore, the Trial Court correctly recorded the conviction, which may be confirmed. 5. We have examined the record and proceedings of the Trial Court and the evidence in light of the contentions raised. 5.1 The prosecution has examined Rajkumar Ishwardas Punjabi, at Ex.11. He was one of the Panch witnesses to the search and seizure. He states that on 21st August, 1997, he was summoned by Police at Gaekwad Haveli in the Crime Branch and was told that they have some information regarding charas and he has joined as Panch witness. There was one person present in the office, who was called and the witness was told that this person was bringing charas and has been apprehended. Thereafter, they all went to a place near Chandola Talav along with the accused. A person was called for weighment. F.S.L. Officer was summoned. He says that he was shown the place wherefrom the accused was apprehended. Papers were prepared and signatures were obtained. Thereafter, they were taken again to the Crime Branch where pieces of charas were removed from two tins and signatures obtained. He identifies the accused as a person who was shown to him on that day as the person having brought charas. He is, with the permission of the Court, declared as a witness hostile to the prosecution and has been cross-examined by the prosecution. He denies all the suggestions made to him by the prosecution to support the procedure indicated in the Panchnama. During cross-examination to the defence, he states that the accused was handcuffed and tied with rope when they were taken to Chandola. He says that Panch No.2-Ayub was them. He denied the suggestion that he had signed on blank papers, but states that he had signed on many papers and that he does not know what was the use made by the police of those papers. 5.2 P.W.2-Tarunkumar Amratlal Barot is the raiding Officer. He was Police Inspector, D.C.B., Crime Branch on 21st August, 1997, when he received the information through Police Head Constable-Gopalsing and Police Constable-Abdul Majid that Jainuddin alias Dilo Ansari is to go to the house of Govindsinh Rajput with a quantity of charas. He says that he, therefore, asked Constable-Abdul Majid to summon Panch witnesses and intimated his superior through Confidential letter bearing Confidential No.100/97 T.A.B. He says that a mutual search of the Panch witnesses and other members of the raiding party as well as search of the vehicles was conducted and no contraband was found. A preliminary Panchnama was drawn whereafter they left for the place along with the Panch witnesses and after reaching the place, a watch was set. After about 20 minutes, a person came from Isanpur Culvert side, who was introduced as Jainuddin alias Dilo by Police Constable Abdul Majid. The said person had a bag in his hand. His right hand was bandaged. After he came near to the witness, he was intercepted and informed that they are the officers of Narcotic Cell and the suspect is to be searched for quantity of contraband charas and, therefore, if he so desired, he can be taken before a Magistrate or another Gazetted Officer and the suspect denied to exercise the option and said that he had faith in the raiding Officer. The witness says that because the suspect was Hindi speaking, he was explained the above aspects in Hindi and a Yadi in writing was given offering option (envisaged under Section 50). The contents of the said Yadi were also explained to the suspect in Hindu and his signature was obtained on the copy. Signatures of Panch witnesses were also obtained. Thereafter, search of the person of the suspect was conducted and Rs.140/- were found from pocket of his shirt, whereas the Khakhi cloth bag that he was carrying, which was found to be heavy, was got searched and black candle shaped material was found in a plastic bag from the said Khakhi cloth bag. On being sniffed, those pieces smelt like charas. Officers from the F.S.L. were summoned and superior officer, Shri N.R. Parmar, was intimated about the incident. Police Constable-Takhtsinh was sent to bring scales, who called one Rameshbhai, working as goldsmith. Rameshbhai was informed about the incident in presence of Panch witnesses; that charas was seized from the suspect and was to be weighed and, therefore, he started weighing. In the meantime, Officer from the F.S.L. also arrived. The contraband was found to weigh 3.200 kgs. in the form of 70 candle shaped pieces. Shri Sharma from F.S.L. took out samples from each of the pieces, weighing about 20 grams and performed a test on the said quantity and, primarily, opined the material to be charas. The remainder of the 20 grams of charas divided into two parts and, separately, placed into polyethylene bags, which were heat sealed and, thereafter, placed into tins of Jafrani Patti, separately, which again was sealed with wax, after wrapping slips containing signatures of Panch witnesses as well as the raiding Officer and tying with thread, by wax seal of "P.I. NDPS Narcotic Cell". The muddamal was seized. The remaining quantity of contraband was placed in an aluminium tin, was sealed and was also seized. The accused, on being asked, disclosed that he did not have any permit to possess the material. A seizure memo was prepared and given to the accused, obtaining his signature on the copy. The Panch witnesses as well as the raiding Officer have also signed on the copy. The witness says that Police Superintendent, Shri N.R. Parmar, who was informed about this earlier, arrived while the procedure was on and he also interrogated the accused. F.S.L. Officer, Shri Sharma gave a certificate that the material tested by him was charas. A receipt was given by witness-Ramesh Nanchand certifying about his having weighed the contraband and having found the contraband to weigh 3.200 kgs. The witness says that a detailed Panchnama in this regard was drawn. The accused was arrested and was intimated about the cause of arrest in writing. He was explained about the contents in Hindi. The witness says that, thereafter, the entire raiding party along with the Panch witnesses and the accused went to the Crime Branch where he lodged the F.I.R. (Ex.16). He himself made an entry in the Police Station Diary regarding the offence. The muddamal was handed over to the P.S.O., who, in turn, handed it over to Crime Writer Head-Vishnuprasad in a sealed condition and the investigation was entrusted to P.S.I., Rajput. A special report in this regard was prepared in the hands of Writer Constable-Mahendrasing and was sent to superior officer (Ex.17) A Ravangi Nondh was prepared for sending the muddamal to F.S.L. by Shri Rajput, where the witness signed as "Through me". The witness identifies the person apprehended and arrested as the accused before the Court. He identifies the muddamal also. 5.2.1 The witness is subjected to cross-examination. He states that, he did not inquire about the name of the informer from the police personnel, who gave him the information. The description or the age of suspect was not intimated by the informer, but his name and address were given. He says that when the information was received by the superior officer through the subordinate personnel, he was not present. He denies the suggestion that the information is, subsequently, got up. He admits that there is no outward number of the Crime Branch, but he, immediately, states that, in such information to the superior, only their personal number is given. He says that about one hour and a quarter had lapsed before they could reach the spot and has not made any arrangement for ensuring prevention of any escape of the suspect. He admits that he had not inquired about the antecedents of the Panch witnesses. He says that he had inquired from the police personnel who had informed him, as to whether they knew Jainuddin and they said that they knew him by face. The witness says that he had not recorded statement of the suspect about giving of option or explaining about the same. He also says that he had not inquired about the educational status of the suspect. He says that "gazetted" is an English word. He says that, he did not know that in U.P., Bihar and Rajasthan, Magistrates are known as Munsifs. He says that he had not used the word "Munsif" but had used the word Magistrate while offering option. He says that he had intimated the F.S.L. and they arrived in a Mobile (Laboratory). He has mentioned in the Panchnama about having intimated the F.S.L. He says that the seal remains in the custody of the office and no record is maintained. The seal of the Narcotic Cell remains with the Narcotic Inspector and, at the time of the incident, he was the only Inspector in the Narcotic Cell. He admits that the investigation was handed over to a Police Sub-Inspector subordinate to him and the muddamal remained with him till the investigation was handed over to P.S.I. The opinion of F.S.L. was in respect of the muddamal which was sent to F.S.L. He says that the P.S.O. had not applied his separate seal. He denies the suggestion that all documents are subsequently got up and concocted. He also denies that signatures of the accused were obtained subsequently on the documents. He states that he has no idea whether muddamal weighing 3.670 gms. was sent for analysis. He denies that the accused is falsely implicated. 5.3 P.W.3-Ayubbhai Abdulbhai Shaikh is examined at Ex.18. He is the Panch witness to the raid, search and seizure. He says that, he was called at the Gaekwad Haveli on 21st August, 1997, at 15.45 hours by a person who introduced himself as Jamadar Majidbhai from Crime Branch. He enquired of the witness whether he would like to be a Panch, where a man is to come with charas. The witness says that he had agreed to that. Therefore, he was taken to Crime Branch where his signature was taken. There was another person who had also signed. The witness identifies his signature as Panch No.2. Thereafter, he says that a mutual search was conducted. Thereafter, the raiding party went to the place in police vehicles and reached Chandola. The vehicle was parked near a culvert. Thereafter, both the Panchas and other members of the raiding party, including Majidbhai, Gopalsing, etc. went on foot and arranged a watch by taking scattered positions. After about 20 minutes, a person was seen coming from a distance. He was introduced as 'the person' by Majidbhai. Thereafter, the members of the raiding party got collected and cordoned the said person. He was asked as to what is in his hands and he said that it was charas. He was told by the raiding Officer that they are from Crime Branch and that they have information that he has brought charas. He was asked, if he wants to call a higher officer for being searched,