IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 94 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES 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? -------------------------------------------------------------- DINESH DHIMETRAY MEHTA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR BS SUPEHIA for Appellant THROUGH JAIL for Appellant MR KP RAVAL, Ld. APP for Respondent - State -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE H.H.MEHTA Date of decision: 27/09/2002 C.A.V. JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) [1] The original accused of N.D.P.S. Case No.3 of 1998, which came to be decided and disposed by the learned Special Judge, Vadodara of the Special Court constituted under Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 has, by filing this appeal under Section 374(2) of the Criminal Procedure Code, 1973 [For short "Cr.P.C.] read with Section 36-B of the N.D.P.S. Act, 1985 [for short "N.D.P.S. Act"] challenged the correctness and legality of the judgment Ex.48 dated 30/12/2000 of conviction and sentence rendered by the said learned Special Judge, Vadodara in aforesaid case namely N.D.P.S. Case No.3 of 1998, whereby the present appellant has been convicted under Section 235(2) of the Cr.P.C. for an offence punishable under Section 20(b)(i) of the N.D.P.S. Act and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-[Rupees One Lacs Only] and in default to undergo further simple imprisonment for one year. [2] As per the complaint Ex.27 lodged by Shri D. S. Deol, Police Inspector, J.P.Road Police Station, Vadodara City, the case of prosecution in a nutshell is as follows:- [2.1] On or about 05/01/1998, the complainant Shri D. S. Deol, Police Inspector was present on duty in J.P. Road Police Station, Vadodara. P.W. 8, Shri Samsersinh Miyasinh, who was Deputy Police Commissioner, Southern Region, Vadodara City informed the complainant - Shri D. S. Deol, by giving a telephone message to the effect that one Dinesh Dhimantrai Mehta [present appellant] is illegally keeping "Charas" in his possession in his residential house No.C/23, situated in Sumant Park, Vadodara and that he is selling that "charas" and further that at present, that Dinesh Dhimantrai Mehta had kept illegally "charas" in quantity in his house. By that message, Shri Samsersinh Miyasinh also directed Shri Deol to go to that place of residence of Shri Dinesh Dhimantrai Mehta and make a raid and search his house. Thereupon, Shri Deol sent Police Head Constable Shri Dineshbhai Bhikhabhai B.No.2184 to call two persons to act as panch witnesses. The Police Head Constable Shri Dineshbhai Bhikhabhai called two persons namely [1] Ilyas Ismailbhai Patel and [2] Nirmalkumar Shantilal Shah. They appeared before Shri Deol in Police Station, Vadodara. Shri Deol apprised of said two panch witnesses and other Police personnel, who were to accompany Shri Deol for raid and search pursuant to the information, which he received from Shri Samsersinh Miyasinh. Shri Deol allowed said two panch witnesses and members of raiding party to take search of each other to ascertain that no one had with him any contraband article. Thereafter, Shri Deol in company of the said two witnesses and members of his raiding party, by taking with him necessary articles for packing and sealing left Police Station for residence of the present appellant. Before leaving Police Station, Shri Deol made an Entry No.20/98 at about 14.05 hours in Station diary. He also drew a preliminary panchnama during the period from 13.45 to 14.00 hours, on 05/01/1998. [2.2] Shri Deol, two panch witnesses, P.S.I. Shri P.H. Bhesania and four other staff - members of the Police, by travelling in Government vehicle, left Police Station for residence of the appellant. The other members of the raiding party also started to go with Shri Deol, by travelling in another private vehicle. They reached at Flat No.C/23 of Sumant Park Apartment, Vadodara at about 14.15 hours. [2.3] The door of that Flat No.C/23 was knocked by Shri Deol. One person opened the door of that Flat. Shri Deol told that person to come out from the Flat. Shri Deol asked the name and address of that person. The person informed Shri Deol that his name was Dinesh Dhimantrai Mehta resident of C/23, Sumant Park Apartment, Opp. Shrenik Park, Near Akota Stadium, Vadodara. He has also informed Shri Deol that originally, he was of Jamnagar, residing at Suvidhisadan, Near Pancheshwar Tower, at Jamnagar. The complainant gave his identification to the appellant and informed him that charas in quantity was there, in his house and for that, he wanted to raid and search his house. Shri Deol gave oral as well as written information/explanation to the appellant as to whether he wanted his house to be searched in presence of the Magistrate or a Gazetted Officer or Superior Police Officer. The appellant informed Shri Deol that he wanted his house to be searched in presence of some Superior Police Officer. On being informed thus by the appellant, Shri Deol informed Shri Samsersinh Miyasinh on telephone. Within short period, Shri Samsersinh Miyasinh came to the residence of appellant. Before making raid and search, Shri Deol allowed the panch witnesses and members of the raiding party to make interse search of each other to ascertain that they had no contraband articles with them. Thereafter, Shri Deol by keeping the appellant present with him started to raid and search the house of the appellant, in the presence of the panch witnesses, Shri Samsersinh Miyasinh, [Deputy Police Commissioner, South]. On making raid and search the Flat No.C/23, it was found that in the beginning, first there was a drawing room and on western side of that drawing room, there was one bad room. There was one shelf [Nourth-South] on eastern side wall of that bad room. Some house hold articles were there on that shelf. Among that house hold articles on shelf, there was one black coloured rexine bag. There were two cardboard boxes in that rexine bag. Out of two boxes, one was having a design on the outer cover of that box, while other was yellow-red coloured box. On each of the boxes, sticker was affixed on it with a write up viz 'Manufacturer and Seller Kandoi Trikam Bechar Mesubwala, Mesubwala Building, Bardhan chowk, Jamnagar-1." That two boxes were opened in presence of panch witnesses and on opening that boxes, it was found that there were black coloured small and big pieces in rectangular shape, in said boxes and that pieces were covered under plastic. That pieces were smelt by panch witnesses and Shri Deol and members of the raiding party. It was found that pieces were of charas. As per the case of the prosecution, during the raid and search, two bottles containing English wine, were found from the house of the appellant. There was a Green Label of "Rich Blend Whisky International Distillery India, 750 ML." on each bottle. As per the case of the prosecution that two bottles were estimated to be of value of Rs.500/-. In that very room, there was one electric switch-board in the southern corner of East-West Wall and on opening that switch-board, it was found that there were two packets in plastic bag inside the hollow portion of switch-board and from that two packets black coloured pieces in rectangular shape were found and on smelling that pieces it was found that the pieces where of charas. Thereafter, kitchen was raided and searched. On opening electric switch-board on the southern side of wall of that kitchen, two packets in one plastic bag were found from the hollow portion of that switch-board. On opening that two packets, similar black coloured pieces in rectangular shape were found. That pieces were smelt and it was found that the pieces were of charas. Thereafter, Shri Deol asked the appellant as to whether he had any pass or permit or licence or authorization letter for keeping that charas as well as English Wine. The appellant informed Shri Deol that he had no such pass, permit or authority letter. Thereafter, one Police constable Jalaluddin Badruddin was sent to call one shopkeeper along with scale and measurement weights, within short period. Jalaluddin Badruddin brought one shop keeper namely Pradip Bhagwandas Soni together with a scale and measurement weights in range of weights from 10 Grams to 1 Kg. Thereafter, Shri Deol got that pieces of charas weighed with the help of Pradipbhai Bhagwandas Soni, who had come there with scale and measurement weights. It was found that that article was weighing 4 Kg. and 940 Gram. Shri Deol estimated value of that charas to be of Rs.1,95,000/- [Rupees One Lac Ninety Five Thousand Only]. Thereafter, that pieces of charas were placed inside one plastic bag and that plastic bag was placed in one cloth bag and it was stitched with the help of needle and string. Thereafter, a slip bearing signatures of panch witnesses, Shri Deol and Shri Samsersinh Miyasinh, was affixed on that stitched cotton bag. Thereafter, that cotton bag was sealed with sealing wax with seal of "Police Inspector, J.P.Road Police Station, Vadodara." Along with that contraband articles, one passport in the name of appellant, one passbook of State Bank of India in the name of the appellant, black coloured rexine bag and two card board boxes meant for sweets, were seized under panchnama in presence of panch witnesses. That second panchnama was drawn during the period from 15.00 hours to 17.00 hours. Shri Deol obtained one receipt from Pradipbhai Bhagwandas Soni, who had weighed charas. That certificate was signed by the panch witnesses and Shri Deol. The accused was arrested for the offence punishable under the provisions of NDPS Act at 17.00 hours. One writing was prepared stating the grounds of arrest in duplicate. The original writing was given to the appellant and the office copy signed by the appellant was kept by Shri Deol, P.S.I. Shri Bhesania seized two bottles of English Wine under the provisions of the Bombay Prohibition Act, for which a separate case has been lodged against the appellant. [2.4] Shri Deol along with seized articles and appellant went to J.P.Road Police Station, Vadodara and lodged his complaint against the appellant at 18.30 hours on 05/01/1998. Shri Deol entrusted the custody of the appellant to P.S.O. of the said Police Station. He also handed over the articles seized from the house of the appellant to same P.S.O. The complaint lodged by Shri Deol came to be registered as C.R.No.II-10/98. That offence registered on the basis of complaint was investigated by Shri Deol by himself and on completion of investigation, Shri Deol filed a charge-sheet against the appellant in the Court of the learned Special Judge, Vadodara on 24/03/1998. That charge-sheet came to be registered as N.D.P.S. Case No.3 of 1998. [2.5] Mr.R.M.Parmar, the then learned Special Judge, Vadodara framed charge Ex.5 against the accused on 11/07/1998. On plea of the appellant, being recorded he pleaded not guilty to the charge and he claimed to be tried. He also stated to the Court that he himself would defend the case, personally. Thereafter, the prosecution examined in all nine witnesses to prove the case against the appellant. The prosecution also produced the documentary evidence in support of the case against the appellant. The accused/appellant examined one defence witness D.W.1 Murlidharan Vishvanathan Nair at Ex.37, in his defence. After hearing the arguments of learned APP for the State and appellant-in-person, Mr.R.M.Parmar, the then Special Judge, Vadodara rendered his judgment Ex.38 on 19/09/1998 by which the present appellant was convicted for an offence punishable under Section 20(b)(ii) of the NDPS Act and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-- and in default of fine to undergo further R.I. for one year. [3] Being aggrieved against and dissatisfied with the said judgment dated 19/09/1998, the appellant preferred Criminal Appeal No.921 of 1998 to this Court. That Criminal Appeal No.921 of 1998 was heard and decided by this Court [Coram : J.N.Bhatt and J.R.Vora, JJ.] and by its order dated 31/07/2000, the impugned judgment dated 19/09/1998 rendered by Mr.R.M.Parmar, the then Special Judge, Vadodara was set aside and quashed, with a direction that said case be sent back to the Trial Court for "de dovo" trial, after observing the requisite procedure for providing Legal Aid to the accused, in his defence, as expeditiously as possible and preferably within a period of four months from the date of receipt of file from this Court, since the accused was in Jail. [4] The learned Special Judge received writ of this Court Ex.40 on 14/08/2000. By an order Ex.41 dated 25/08/2000, the Secretary of the District Legal Services Authority, Vadodara appointed one Advocate Shri M.H. Shaikh to defend the present appellant in the trial Court. The learned advocate Mr.M.H.Shaikh submitted an application Ex.42 to the learned Special Judge, Vadodara requesting to start the trial "de-novo". The learned Judge passed an appropriate order on 28/11/2000 below application Ex.42. From the record, it appears that the learned Additional Public Prosecutor for the prosecution submitted a purshis Ex.44 stating interalia that the oral evidence of nine witnesses has been recorded and the State placed reliance on oral evidence of that nine witnesses given in examination-in-chief and whatever documents have been produced during the trial through the said nine witnesses, were to be treated as documentary evidence for the prosecution and the prosecution does not want to produce any further documentary evidence. From the record, it appears that thereafter, learned Advocate Mr.M.H.Shaikh cross-examined all the nine witnesses, who were examined earlier by the prosecution in detail at length. Thereafter, the prosecution declared their evidence to be closed. The accused/appellant submitted a purshis Ex.47 stating interalia that he does not want to examine any witness in his defence. From the record, it appears that thereafter, the learned Special Judge, Vadodara heard the arguments of learned Additional Public Prosecutor for the State and Mr.M.H.Shaikh, learned advocate for the appellant-accused and, thereafter by rendering the judgment dated 30/12/2000, Shri C.D.Patel, learned Special Judge, Vadodara convicted and sentenced the appellant as stated in para-1 hereinabove. As against this second judgment of conviction and sentence, after holding "de novo" trial by the learned Special Judge, Vadodara, the original accused has preferred this present Criminal Appeal. [5] We have heard Mr.B.S.Supehia, learned advocate for the appellant and Mr.K.P.Raval, learned APP for the respondent State in detail, at length. Mr.B.S.Supehia has taken us through the oral evidence as well as documentary evidence and the impugned judgment challenged in this appeal. [6] We have anxiously considered the submissions made by both the parties. We have carefully examined and reappreciated the evidence on record. For the sake of convenience, it is necessary to note as to what evidence has been led by the prosecution before the trial Court. [A] ORAL EVIDENCE :- [1] P.W.1, Ilyas Ismail Patel [panch witness] Ex.8; [2] P.W.2, Pradipbhai Bhagwandas Soni [Goldsmith, who weighed the articles] Ex.15; [3] P.W.3, P.S.I., Pareshbhai Bhagwandas Bhesania Ex.17; [4] P.W.4, Police Jamadar Fatesing Bhavansingh Ex.20; [5] P.W.5, Police Constable Maheshbhai Chhaganbhai Ex.21; [6] P.W.6, Police Jamadar Adesinh Himmatsinh Ex.23; [7] P.W.7, Police Inspector, Devising Shivlalsing Deol [complainant], Ex.26; [8] P.W.8, D.C.P. Samsersinh Miyasinh Ex.30; [9] P.W.9, Bipin Durlabhji, Scientific Officer of F.S.L. Ex.31; [B] DOCUMENTARY EVIDENCE :- [1] Panchnama Ex.9; [2] A written information given to the appellant for compliance of Section 50 of the N.D.P.S. Act Ex.13; [3] A writing stating interalia the grounds of arrest of the appellant Ex.14; [4] A certificate issued by P.W.2 Pradipbhai Bhagwandas for he having weighed the seized articles Ex.16; [5] A letter of receipt of muddamal articles issued by responsible Officer of F.S.L. Ex.22; [6] A copy of Entry No.20 from the Station Diary of J.P.Road Police Station, Vadodara, Ex.24; [7] A copy of Entry No.21 from the Station Diary or J.P.Road Police Station, Vadodara, Ex.25; [8] A complaint lodged by Shri Deol Ex.27; [9] A copy of forwarding letter sent by Investigating officer to F.S.L. Ex.28; [10] Yadi given by Shri Deol to Police Constable Maheshbhai Chhaganbhai directing him to carry with him and hand over the muddamal articles to the F.S.L. Ex.29; [11] A report of F.S.L. Ex.32; [12] A report from Biological Division of F.S.L. Ex.33; [13] A letter acknowledging the receipt of parcel addressed by Assistant Director of F.S.L. to Police Inspector, J.P. Road Police Station, Vadodara Ex.34; [7] Mr.B.S.Supehia, learned advocate for the appellant has argued that the officer P.W.8 - Shri Samsersinh Miyasinh, who received an information from the informant has committed a breach of Section 41(2) of the NDPS Act, by not reducing that information which he received into writing. He has further argued that P.W.8 Shri Samsersinh Miyasinh, while giving direction to P.W.7 Shri Deol to go to the place stated in the information to raid and search the house of the appellant, gave that information to P.W.7 Shri Deol on phone and Shri Deol reduced that information into writing, by making an Entry No.20/98 [Ex.24] in the Station Diary. He has argued that Shri Deol has committed a breach of Section 42(2) of the NDPS Act, by not sending a copy of that information forthwith to his immediate Superior Officer. He has argued that the provisions of Sections 41 and 42 of the NDPS Act are mandatory provisions and the breach thereof vitiates the trial against the accused and, therefore, the accused be acquitted of the offence, by allowing this appeal. He has further argued that in this case, P.W.7 Shri Deol, who received an information from P.W.8 Shri Samsersinh Miyasinh and made and Entry No.20/98 in the Station Diary, by keeping panch witnesses at the time of raid and search, raided and searched the house of the appellant, lodged the complaint against the appellant, investigated the case against the accused and ultimately, he filed the charge-sheet against the accused in the Court and, therefore, he is an officer who received information, the complainant, raiding officer, I.O., and officer filing the charge sheet. Under these circumstances, his evidence has become gravely suspicious and it requires to be scrutinized more care and caution. By not making a full report of particulars of arrest and seizure to his immediate Superior Officer, within 48 hours, the trial has been vitiated, as a result of noncompliance of Section 57 of the NDPS Act. He has further submitted that looking to the conduct of Shri Samsersinh Miyasinh grave suspicion has been created and on making close scrutiny of evidence of Shri Samsersinh Miyasinh, one can safely say that for some ulterior motive Shri Samsersinh Miyasinh has taken undue interest in the case, which clearly makes the case doubtful and, therefore, this is a fit case in which the benefit of doubt should be given to the appellant, by allowing this appeal. [8] Mr.K.P.Raval, learned APP for the respondent - State has supported the judgment of conviction and sentence rendered by the learned Special Judge, Vadodara. He has practically adopted the arguments accepted by the learned Special Judge, while rendering the impugned judgment. He has further argued that Shri Samsersinh Miyasinh has not committed a breach of Section 41(2) of the Act and further that Shri Deol, who raided and searched the house of the appellant has not committed a breach of Section 42(2) of the Act. He has further argued that when Section 57 of the N.D.P.S. Act is not a mandatory provision, the appellant should satisfy the Court that he has been prejudiced in his defence when Shri Deol has failed to comply with the provisions of Section 57 of the NDPS Act. In short, Mr.K.P.Raval, learned APP for the respondent - State has supported the judgment of conviction and sentence, which is challenged in this appeal. [9] During the course of hearing of this appeal, this Court passed the following order on 16/08/2002. "[1] xxxxx [2] xxxxx [3] During the course of hearing, while taking us through the paper book consisting of oral as well as documentary evidence, it transpires that the important documents i.e. Exs.24 and 25 the Station Diary maintained by concerned Police Officer of J.P. Road Police Station, Baroda and the entry from the said Station Diary of J.P.Road Police Station, Baroda are not legible. Accordingly we inform Mr.K.P.Raval, learned APP to get original Station Diary from J.P. Road Police Station, Baroda with the prepared legible copies in five sets. Mr.Raval has requested that the matter be kept on 27th August, 2002 by treating this matter as "Part Heard". [4] Without referring the original Station Diary, it is not possible for this Court to proceed further in the matter and, therefore, the matter is accordingly treated as Part Heard. As the present Sittings are changed from 19th august, 2002, the Office is directed to obtain necessary orders from the Hon'ble Chief Justice in this regard." [9.1] Accordingly, Mr.K.P.Raval produced loose sheets of pages 21 to 27 from original Station diary, on 27/08/2000. We have carefully perused that original Station diary, which contains Entry Nos.1 to 29 of 05/01/1998. Mr.K.P.Raval, learned APP, has also produced typed copies of relevant Entry Nos.18 to 29, which are kept with the paperbook. Mr.Supehia has produced certain authorities with regard to the compliance of Sections 41 and 42 of the N.D.P.S. Act. We will deal with that authorities at appropriate stage. We have also perused a detailed appeal memo forwarded by the appellant through Jail Authority as present appeal is filed by convict through Jail. We have considered the grounds taken by the appellant in the said appeal memo. [10] From the evidence on record, it is very much clear that the prosecution has come with a specific case that P.W.8 - Shri Samsersinh Miyasinh, Deputy Commissioner of Police, Southern region, at Vadodara was present on his duty in his office. At about 1.00 p.m., one informant gave a secret information to said Shri Samsersinh Miyasinh to the effect that one Dinesh Dhimantrai Mehta [appellant] residing in Block No.C/23 of Sumant Park Apartment, situated in Akota area of Vadodara had certain quantity of charas with him. On receipt of such information, P.W.8 - Shri Samsersinh Miyasinh made a telephone to complainant - P.W.7 Police Inspector Shri Deol who was performing his duty in J.P. Road Police Station, Vadodara. [11] As per evidence of P.W.6 - Police Jamadar Adesinh Himmatsinh Ex.23, he was on duty as P.S.O. of J.P.Road Police Station, Vadodara during the period from 12.00 hours to 20.00 hours on 05/01/1998. As per his evidence, Shri Deol received that telephone "Vardhi" at 14.05 hours. P.W.6 - Police Jamadar Adesinh Himmatsinh has deposed that in said "Vardhi" it was informed to the effect that Dinesh Dhimantrai Mehta residing at Flat No.C/23 in Sumant Part Apartment, Vadodara was preparing and keeping quantity of charas in his house. As per evidence of P.W.6 - Police Jamadar Adesinh Himmatsinh, Police Inspector Shri Deol personally made an Entry No.20 in the Station Diary of the Year 1998. That entry is at Ex.24. We have perused that original Entry No.20 [Ex.24] from the original Station Diary, which we had called for. That Entry No.20 [Ex.24] is on page-24 of the Station Diary. It was made at 14.05 hours. From the cross-examination of P.W.6 - Police Jamadar Adesinh Himmatsinh, it appears that it is also the case of the prosecution that it was a routine practice of the Police Station that an entry with regard to the "Vardhi" received on telephone is made in "Vardhi"-Register. As he was incharge of P.S.O., Shri Deol had called for that "Vardhi" book from him. Before Shri Deol left the Police Station,