Gujarat High Court
Union Of India Through Narcotic Control ... vs State Of Gujarat on 12 June, 2018
Bench: Harsha Devani, A.S. Supehia
R/CR.MA/7093/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO.7093 of 2018
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UNION OF INDIA THROUGH NARCOTIC CONTROL BUREAU
Versus
STATE OF GUJARAT
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Appearance:
MR DEVANG VYAS(2794) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MR PRANAV TRIVEDI, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 12/06/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. By this application under section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code") the applicant - Union of India seeks leave to appeal against the judgment and order of acquittal dated 17.02.2018 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Court No.10, Ahmedabad City in Special Case NDPS No.3 of 2014, whereby the respondent No.2 - accused has been acquitted of the offences punishable under sections 8(c) read with sections 20(b), 29 and 31(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act").
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2. Mr. Kshitij Amin, learned Standing Counsel, assailed the impugned judgment and order of acquittal by submitting that the trial court has failed to appreciate the evidence on record in proper perspective and hence, the judgment and order of acquittal deserves to be set aside. It was submitted that the accused was directly involved in the offence as the contraband substance charas was found from the conscious position of the accused. He has submitted that the authorities had diligently followed the procedure prescribed under the NDPS Act and the accused was also made aware of his rights. Thus, he has submitted that having regard to the evidence adduced by the prosecution the trial court was not justified in acquitting the accused and the matter requires consideration and leave to appeal deserves to be granted.
3. This court has considered the submissions advanced by the learned Standing Counsel and has also perused the record and proceedings of the case.
4. Briefly stated the prosecution case is that the Narcotics Control Bureau (NCB), Ahmedabad Zone Unit received an information that on 05.10.2013 one Gulam Mohammad, resident of Bandhipora, Kashmir had sent an approximately 18 Page 2 of 6 R/CR.MA/7093/2018 ORDER kilograms of charas to the accused - respondent no.2 in a Tata Sumo car bearing registration No.GJ9H4922 to be delivered at ShahEAlam area in Ahmedabad to one Mukhtiyar. Acting on such tipoff, the Intelligence Officer, Shri Rameshwar Das, summoned two independent witnesses at his office, situated near DriveinCinema, Thaltej, Ahmedabad. When they arrived at about 10:15 in the morning, all the facts were narrated to the panch witnesses and after forming a team they went to ShahEAlam area along with the panch witnesses and reached there at 11:00 a.m. and started searching for the vehicle Tata Sumo. At around 12:30, in the noon, near ShahEAlam Darwaja, on the road leading towards warehousing corporation, the accused - respondent no.2 was standing near one Tata Sumo car bearing registration No.GJ9H4922. After carrying search in the said vehicle, 24 packets of charas, weighing about 48.09 kilograms were recovered. Accordingly, a panchnama was carried out. A personal search of the accused was also done and a mobile phone of Nokia company and a voter ID were also recovered. Thereafter, investigation was carried out and after investigation the complaint was lodged before the learned Special Judge, Ahmedabad and the same was registered Special Case NDPS No.03 of 2014.
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5. Before the trial court the prosecution examined four witnesses and placed reliance on 25 documentary evidence during the trial proceedings. After examining the same minutely and in detail, the trial court acquitted the accused - respondent No.2
6. We have examined the evidence and have also scrutinized the judgment and the observations made by the trial court. It is not the case of the prosecution that the contraband substance is recovered from the possession of the accused. As per the prosecution case, the accused was found standing near the Tata Sumo car. The two independent panch witnesses, in the presence of whom the search of the car was carried out and the contraband substance was seized, are not examined. The evidence suggests that no efforts are made by the prosecution to trace out the panch witnesses and bring them before the trial court. No independent witness has been examined by the prosecution. The prosecution has also failed to establish the substratum of their information received by the NCB that the contraband substance was being sent by one Gulam Mohammad from Kashmir. The NCB, Jammu Zonal Unit has not made any efforts in tracing out Gulam Mohammad. No record is produced by the prosecution in this regard. The time and date of Page 4 of 6 R/CR.MA/7093/2018 ORDER receiving such information is also not established by the prosecution. It is case of the prosecution that the contraband consignment was to be delivered to Mukhtiyar but after apprehending the accused - respondent no.2, the NCB officers neither waited for Mukhtiyar to turn up nor made any efforts to search him. No such investigation involving Mukhtiyar was carried out by the NCB officers. The evidence further reveals that the samples from the contraband substance, their packing as well as the procedure of their sealing was not carried out on the spot due to heavy traffic on the road and the entire procedure was carried out at the NCB office which was situated about 8 to 12 Kilometers from the spot, though the same could have been done at the adjoining central warehouse. Thus, the manner and method in which the seizure and investigation is carried out by the NCB officers does not render credence to the prosecution case.
7. A perusal of the findings recorded by the trial court reveals that the trial court, after a threadbare examination of the oral as well as the documentary evidence has rightly acquitted the accused from the offence for which he has been charged. On the evidence which has been established on record, it cannot be said that the view taken by the trial court is in any manner Page 5 of 6 R/CR.MA/7093/2018 ORDER perverse to the record of the case. Under the circumstances, even if on the same set of circumstances, it was possible to take a different view, there would still be no warrant to interfere with the impugned order passed by the trial court.
8. In the light of the above discussion, no case is made out for grant of leave to appeal. The application therefore, fails and is summarily rejected.
Sd/ [HARSHA DEVANI, J] Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 6 of 6