Gujarat High Court
Sanjay Patel vs Shahid Ibrahim Maniar & Ors on 5 May, 2017
Author: A.J. Shastri
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1641/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1641 of 2010
With
CRIMINAL MISC.APPLICATION NO. 2195 of 2014
In
CRIMINAL APPEAL NO. 464 of 2011
With
CRIMINAL APPEAL NO. 464 of 2011
With
CRIMINAL APPEAL NO. 660 of 2011
With
CRIMINAL APPEAL NO. 985 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
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the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SANJAY PATEL, INTELLIGENCE OFFICER ....Appellant
Versus
SHAHID IBRAHIM MANIAR & ORS. ...Respondents
================================================================
APPEARANCES:
CRIMINAL APPEAL NO. 1641 of 2010 With
CRIMINAL MISC.APPLICATION NO. 2195 of 2014
MR KARTIK V PANDYA, ADVOCATE for the Appellant - Applicant (NCB)
MR R.M.AGRAWAL, ADVOCATE with
MS. REKHA KAPADIA, ADVOCATE with
MS. K.U.MISHRA, ADVOCATE for Respondents Accused - 1, 2 and 3
MS H.B.PUNANI, APP for the Respondent No. 4 State
CRIMINAL APPEAL NO. 464 of 2011 With
CRIMINAL APPEAL NO. 660 of 2011 With
CRIMINAL APPEAL NO. 985 of 2011
MR R.M.AGRAWAL, ADVOCATE with
MS. REKHA KAPADIA, ADVOCATE with
MS. K.U.MISHRA, ADVOCATE for Appellants Accused - 1, 2 and 3
MR. KARTIK PANDYA, ADVOCDATE for the Respondent No. 1-NCB
MS. H.B.PUNANI, APP for the Respondent No.2 - State
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
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HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 05/05/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The present set of appeals is arising out of the judgment and order datyed 21.06.2010 passed by the learned Additional Sessions Judge, Court No.14, Ahmedabad City in Sessions Case No.178 of 2008 whereby the learned sessions judge was pleased to convict the accused respondents for the offences under Sections 29, 8(c) read with Section 20(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short) and sentenced them to undergo 10 years rigorous imprisonment with a fine of Rs.1/- lakh each and in default of payment of fine, was pleased to order the accused to undergo further six months simple imprisonment. Against the order of conviction accused persons have filed individual appeals which are numbered as Criminal Appeal No.464 of 2011, Criminal Appeal No.660 of 2011 and Criminal Appeal No.985 of 2011 and one application being Criminal Miscellaneous Application No.2195 of 2014 has also been filed in Criminal Appeal No.464 of 2011, and this is in response to the appeal filed by the State being Criminal Appeal No.1641 of 2010 seeking enhancement of punishment imposed upon the accused persons.
2. These appeals since arising out of the very same judgment and order passed in Sessions Case No.178 of 2008, they were ordered to be heard together with connected appeal of the State and in that process this set of appeals has come up for consideration before this Court finally.
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3. The case of the prosecution is that one Customs and Central Excise Inspector Mr.Sanjaybhai Vishwnath Gokhle received secrete information on 26.12.2007 at about 6:00 p.m. that one Maniyar Sahidbhai along with his accomplices named as Imran, Abrahim and Julekhabanu were to pass through Saijpur - Gomtipur - Bapunagar road and they were to come in white colored Maruti Car bearing Registration No.GJ-6-AA-5950 at ST Work Shop at about 2:30 in the night and the said Maniyar Sahidbhai is to come with contraband narcotic drugs 'Charas' to the extent of 40 kg from Ajmer - Rajasthan.
3.1 Upon receipt of said secrete information, as per the case of prosecution, the said information was typed out by him as per requirement of statutory provisions under Section 42(2) of the NDPS Act and transmitted to the Zonal Director, who in turn instructed Mr.Gokhle to form a team. Accordingly team was formed including i.e. (i) R.R.Sing, (ii) S.K.Mukherjee and
(iii) Smt.Apara Mishra along with other staff members. In furtherance of this instruction passed on to them, after formulating a team, they contacted City Mamlatdar to depute two responsible officers to act as panch witnesses as a result of this City Mamlatdar deputed two officers as panch witnesses named H.D.Makvana and Mr.Parekh. After formulating this team, they along with staff members interacted with the panch witnesses, who, in turn, showed their consent to be part of and to act as panch. After completing necessary formalities at about 10:15 to 10:30 in three auto rickshaws from their office they started to reach at the spot where the aforesaid accused persons were to come as per secrete information and while going to the spot near S.T. Workshop at Gomtipur- Saijpur, Page 4 of 55 HC-NIC Page 4 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT they armed with field test kid along with station diary and reached at the spot at about 11:45 pm and after taking position as per inter-se deliberation the said white colored maruti car was seen proceeding towards ST Workshop, these two panch witnesses along with officers and their team intercepted the car wherein they found four persons sitting inside the car in which there was one driver and besides him there was another person and in the back seat of car one lady along with another person were found. The officers and the panch witnesses inquired from the driver who declared his name as Maniyar Sahid and person sitting with driver declared his name as Imran Kadarkhan whereas lady and another person sitting in back seat of the car declared their names as Julekhabanu and Ibrahim Ismail. The team of officers after interception of the car instructed Maniyar Sahid to get his car checked and at that moment as per the case of prosecution Sahid Maniyar confessed that 40 kgs of Charas they have brought and after unlocking the penal from the dickey portion of the car aborting to back seat 20 packets were found covered in the bags and the substance which was found inside were that of brown colored 'Laadu'. This substance was then checked on the spot with the assistance of field test kit, it was positively found that substance was 'Charas'. The case of the prosecution further travels that since there was inadequate light in the area and since it was thickly populated area, it was not possible to carry out seizure procedure and other process on the spot and therefore it was decided by Inspector Gokhle to carry out such process at the office and resultantly along with all the teammates and the car and the persons sitting inside with the substance came at office. It is further case of the prosecution that in the presence of panchas not only the Page 5 of 55 HC-NIC Page 5 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT field testing kit was applied for test purpose, but through electronic weigh machine weight of the substance was weighed as 40 kg 234 gm and out of the said substance 2-2 packets of samples were carved out by taking 24-24 gm of substance and after seal-packing numbers were given over which seal of NCB applied. Thereafter on these packets signatures of accused persons were obtained viz. Sahid Maniyar, Ismail Kadarkhan, Ibrahim Miyana and thumb impression of Julekhaben a lady accused was taken over which was a countersigned and both the panchas have put their signatures along with Inspector Mr.Gokhle. After carrying out said process, other substance left out was packed in cover which was rolled over by cloth, sealed properly over which again signatures of accused and thumb impression of lady accused were taken along with signature of panchas and the signature of Mr.Gokhle - an Inspector, and the entire process was completed.
3.2 It is further the case of the prosecution that as per requirement of Section 50 of NDPS Act, physical search of four accused persons was asked to be carried out whether in presence of Magistrate or Gazetted Officer, however, since respondents accused have denied the same to be searched in presence of Magistrate of Gazetted Officer, other lady accused Julekhaben was physically searched by lady employee of NCB Office viz. Ms.Aprajita Mishra, however, nothing incriminating material was found from lady accused. After that Sahid Maniyar accused person was physically searched from whom cash of Rs.1961, two mobile phones, National Highway Tolnaka receipts four in numbers, one chit consisting of telephone numbers, addresses and driving licence were recovered.
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Simultaneously from accused Imran, a cash of Rs.2665, driving licence, mobile phone, railway ticket were found whereas from accused Ibrahim cash of Rs.509 and one mobile phone was found. All these articles which have been found from the car as well as from personal search of these accused persons were collected as muddamal. On the documents, counter signatures of accused persons were taken and currency notes which were found were handed over back to respective accused and a detailed panchnama in this regard was prepared at Exh.20 over which signatures of panch witnesses have been taken Including the signatures and thumb impression of the accused in the presence of Mr.Gokhle - an Inspector who also put his signature in the said panchnama and the copies of panchnamas were given to all the three accused persons. After that, summons came to be issued upon the respondents accused in view of Section 67 of the NDPS Act and after complying the procedure of Section 76 their statements have been recorded, they came to be arrested and after arrest muddamal was handed over to go-down Incharge as a part of procedure. The arrest memo was also prepared and muddamal Charas for further analysis was sent to CRCL Office at New Delhi.
3.3 It is further case of the prosecution that the investigation of this complaint pursuant to the process stated hereinabove, was taken up by Shri Sanjay Patel, an Intelligence Officer, who during his investigation, inquired about the car, which has been seized as muddamal during raid and with respect to ownership a necessary inquiry was undertaken by recording statement of Sunil Bhandari, a representative of Philips Carbon Ltd. and statement of Manager of Regal Hotel were recorded Page 7 of 55 HC-NIC Page 7 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT and thereafter summons came to be issued to relevant witnesses, their statements have been recorded and after receipt of report of analysis from CRCL Office the report was collected, godown register documents came to be collected and after necessary inquiry the complaint appears to have been lodged for the offences under Sections 20(B) (ii) (c) read with Section 8(c) and Section 29 of the NDPS Act which is recorded at Exh.82 of the record of present case.
3.4 It is further the case of prosecution that said complaint which was registered pursuant to which the accused persons were brought and presented before the learned Chief Judicial Metropolitan Magistrate and the learned Magistrate vide order dated 28.12.2007 was pleased to transmit the case to the appropriate Court for onward action and by passing the order 07.01.2008 by the learned judge, the accused persons were sent to judicial custody.
3.5 The record of the present case further reveals that the case was registered as Sessions Case No.178 of 2008 which has come up for consideration before the learned Additional Sessions Judge, Ahmedabad City and pursuant to the same a charge came to be framed at Exh.9 for the offences punishable under Sections 8(c), 20(b) along with section 29 of the NDPS Act and after making understand the accused persons about the charge their pleas came to be recorded at Exhs.10,11 and 12 respectively, but since the respondents accused have denied the offence being committed and claimed to be tried, the prosecution appears to have made an attempt to prove the case against the respondents accused by leading evidence in the form of ocular as well as documentary evidence in the Page 8 of 55 HC-NIC Page 8 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT following form.
- : ORAL EVIDENCE:-
Prosecution Name of Prosecution Witnesses Exh. Witness Number 1 Panch Wintess - Vipulbhai Bhikhabhai 19 Parekh 2 Raiding Officer - Sanjay Vishwanath 27 Gokhle 3 Investigating Officer - Sanjaybhai 58 Ashokbhai Patel
-: DOCUMENTARY EVIDENCE:-
Sr. Particulars of Documentary Evidence Exh. No. 1 Seizure Panchnama 20 2 Information u/s. 42(2) of NDPS Act 28 3 Summons issued to Imrankhan Pathan as per Section 32 67 of NDPS Act 4 Statement of Imrankhan Pathan 33 5 Arrest memo of Imrankhan Pathan 34 6 Statement of Ibrahim Isabhai Miyana as per Section 36 67 7 Arrest memo of Ibrahim Isabhai Miyana 37 8 Receipts of three telegrams 38 9 Report sent by Shri Sanjay Gokhle, NCB Officer as 39 per Section 57 10 Forwarding letter of muddamal sent to CRCL, New 40 Delhi 11 Report regarding receipt of muddamal by CRCL, New 41 Delhi 12 Statement of Sushilchand Joshi of Regal Hotel, Ajmer 42 as per Section 67 13 Summons issued to Shahid Ibrahim under Section 67 59 14 Statement of Shahid Ibrahim Maniyar under Section 60 67 15 Arrest memo of Shahid Ibrahim Maniyar 61 16 Godown Receipt issued by Intelligence Officer, NCB, 62 Page 9 of 55 HC-NIC Page 9 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Ahmedabad 17 Report submitted by NCB Investigating Officer Sanjay 63 Patel under Section 57 18 Letter written to Regional Transport Office, Baroda 64 19 Letter written by Regional Transport Office, Baroda 65 20 Letter written to Superintendent, NCB, Jammu 66 21 Summons issued under Section 67 to Managing 67 Director / Chairman of Philips Carbon Black Ltd.Vadodara 22 Letter written to Assistant Commissioner of Central 68 Excise and Customs, Bharuch 23 Letter written by Assistant Commissioner of Central 69 Excise and Customs, Bharuch 24 Summons issued under Section 67 to Philips Carbon 70 Black Ltd.Calcautta, 25 Statement recorded under Section 67 of Ranjitraj 71 Bhandari, Vice President, Philips Carbon Black Ltd.,Calcutta 26 Summons issued to Manager, Regal Hotel, Ajmer 72 under Section 67 27 Summons issued to Brahmbhatt Kitrikumar Ramanlal 73 Bahili under Section 67 28 Statement recorde dunder Section 67 of Brahmbhatt 74 Kitrikumar Ramanlal 29 Summons issued under Section 67 to Bharatbhai 75 Jayantilal Thakkar 30 Statement recordedunder Section 67 of Bharatbhai 76 Jayantilal Thakkar 31 Summons issued under Section 67 to Hasanali 77 Shfakatali Saleri 32 Statement recorded under Section 67 of Hasanali 78 Shfakatali Saleri 33 Summons issued under Section 67 to Yusuf Patel 79 34 Statement recorded under Section 67 of Yusuf Patel 80 35 Summons issued under Section 67 of Mahmmad 81 Rizvan Mahmmad Husen, Vadadra through Post 36 Statement recorded under Section 67 of Zulekhabibi 92 3.6 It also appears from the record that after leading the said evidence in the aforesaid manner the closing pursis was given Page 10 of 55 HC-NIC Page 10 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT by the prosecution at Exh.96 and as per requirement, the learned Sessions Judge recorded further statements of respondents accused under Section 313 of Cr.P.C., however, since the respondents accused insisted and reiterated that they have not committed any offence, the case was put up for final adjudication. It has been pleaded in further statements of the respondents accused that all the family members have wrongly been roped into and by giving threat their signatures have been taken, however, none of the respondents accused have led their evidence nor have placed witnesses in support of their say. Resultantly, the charge came to be framed by learned Additional Sessions Judge who after examination of entire evidence was pleased to pass an order of conviction by judgment and order dated 21.06.2010 and it is this judgment and order which is made the subject matter of present group of appeals, as stated above.
4. Upon request of learned advocates for both the sides the conviction appeals have been taken up in preference over the enhancement appeal filed by the State and resultantly learned advocates representing the accused persons have been heard first in point of time. Though the several learned advocates representing the accused persons, Mr.Rajesh Agrawal, learned advocate has taken a lead to submit on behalf of all respective advocates on account of their internal understanding.
Mr.Agrawal, learned advocate has vehemently contended that the judgment and order of conviction is based upon no sound reasons and the same has been passed without taking into consideration the settled propositions of law on various issues. Mr.Agrawal, learned advocate has contended that the very foundation of criminal case is a charge which is in present case Page 11 of 55 HC-NIC Page 11 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT is framed at Exh.9. From the reading of the charge what has been disclosed is a different car number altogether and the deposition of witnesses is referring to another car number in which case a serious suspicion is generated in the case of prosecution and therefore very foundation of the case is getting dismantled. It has further been contended that the prosecution has not led any evidence as to in which circumstance the interception of car in question is made. It has been further pointed out that panchnama of seizure which is required to be prepared at a place of seizure, the said requirement of law is not maintained and the panchnama has been prepared at NCB Office and not at a place where seizure had taken place and in support of this contention Mr.Agrawal, learned advocate relied upon the decision delivered by this Court in the case of Ali Hussein Bakarali Saiyed vs. State of Gujarat reported in 2012 Criminal Law Reporter (Guj.) 565 as well as decision in the case of Kuldeep Singh vs. State of Punjab reported in (2010) 10 SCC 219. Mr.Agrawal has further contended that the godown register has not been produced which would have revealed the exact date and information of seizure of muddamal and the quantity thereof and keeping it whether in safe place and therefore in the absence of production of any godown register, the case cannot be said to have proved and established against the respondents accused.
4.1 Mr.Agrawal, learned advocate has further contended that entire muddamal which has been recovered could not have entire quantity of Charas and therefore the analysis must have been done by the officers about the exact ascertainment of quantity of Charas and the same could have been undertaken Page 12 of 55 HC-NIC Page 12 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT which has not been done in the present case. Mr.Agrawal, learned advocate has further contended that undisputedly the raid has taken place in the open public place at around 11:30 pm meaning thereby the raid has been carried out after sun- set and before sun-rise and therefore Mr.Agrawal, learned advocate has contended that unless and until reasons to be recorded, no action could have been taken which has clearly violated the mandate of section 42 of the NDPS Act. The requirement of mandatory procedure ought to have been undertaken when raid was to be carried out after sun-set and before sun-rise and since it has not been done, the prosecution case is vitiated on the ground of non-compliance of mandatory requirement and for that purpose Mr.Agrawal, learned advocate has relied upon the decision in the case of State of Rajasthan vs. Jagraj Singh @ Hansa reported in (2016) 11 SCC 687. By referring to this decision, Mr.Agrawal, learned advocate has contended that the second proviso to sub-section
(i) of Section 42 is clearly held to be mandatory and moment it gets vitiated entire trial and conviction is vitiated and therefore in this case the non-compliance has got resultant effect of vitiating the entire process and order based upon it. Mr.Agrawal, learned advocate has further contended that prior to carrying the raid no search warrant was obtained from the competent authority and therefore action gets vitiated. No material is gathered to establish ownership of car seized and therefore also in absence of production of any such evidence the case cannot be said to have proved beyond reasonable doubt more particularly when the registration number is differing from charge and testimony of witnesses. Mr.Agrawal, learned advocate has further contended that authorisation before conducting raid must have been obtained and that has Page 13 of 55 HC-NIC Page 13 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT to be established during the course of adjudication. In addition thereto authorisation to launch prosecution also must have been produced and therefore in this case from the inception without adducing any concrete evidence qua that the action came to be initiated which deserves to be treated as bad in law. Mr.Agrawal, learned advocate has further contended that there is no evidence worth the name as to who has authorised to carry out the raid after sunset and before sunrise and whether such authorisation was granted by the competent authority or not would have to be established by examining the relevant witnesses and here in the case on hand Mr.Tiwari, prosecution witness has not been examined by the prosecution. So much so while granting authorisation no reasons have been assigned which would reflect an application of mind and therefore in view of Section 97 to grant such kind of mechanical sanction or authorisation there appears to be no subjective satisfaction of forming a reasonable belief before granting it. It has been contended that from the testimony of P:W.No.2 - Mr.Gokhle no explanation is visible as to under which circumstance Zonal Officer Mr.Tiwari has not been examined and therefore in view of Section 114 of the Evidence Act since such was requirement to establish the case beyond reasonable doubt the case of the prosecution has weakened and therefore for that purpose Mr.Agrawal, learned advocate relied upon decision in case of Jagraj Singh Jagraj Singh @ Hansa (supra) and in case of State of Punjab vs. Balbir Singh reported in AIR 1994 SC 1874. By submitting in aforesaid manner Mr.Agrawal has contended further that the authorisation is found to be not in consonance with requirement of law and therefore the same has vitiated the very trial against the appellant respondents accused.
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4.2 Mr.Agrawal, learned advocate has further contended that assigning reasons is by now well settled as part and parcel of compliance of principles of natural justice and bare reading of letter indicates that while granting authorisation no reasons are reflected which therefore violates the principles of natural justice. Mr.Agrwala, learned has further contended that seizure panchnama is a got up panchnama. The preliminary panchnama which is reflecting at page-783 of paper book compilation bears signatures of accused persons and then surprisingly this very preliminary panchnama is treated as continuous panchnama which in no circumstance can be said to be proper. In cross examination of P.W.No.1, the manner in which the panchnama is prepared has clearly indicated that panchnama itself is not established and the actual seizure therefore is not possible to be concluded as established. At the time when panchnama came tobe prepared the accused persons were not kept present and for that purpose Mr.Agrawal, learned advocate has relied upon the decision delivered by this Court in Criminal Appeal No.271 of 2009 decided on 27.09.2013. It has further been contended that looking to testimony of panch witnesses it cannot be said that contents of panchnama are established. The panchnama is not only prepared not in the presence of accused but appears to be not in presence of panchas as well. The panchnama appears to have been written at the office and from the evidence it is revealed that one set of circumstance indicates that panchas have dictated the panchnama whereas in another testimony it is coming out that on the bonnet of the car the officer was alone writing the panchnama and the third version which is coming out that it has been done at the office. Page Page 15 of 55 HC-NIC Page 15 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Nos.145, 149, 151 and 153 are being referred for this purpose and thereby Mr.Agrawal, learned advocate has contended that the very seizure in such an eventuality becomes doubtful and for that purpose Mr.Agrawal, learned advocate has relied upon the decision of this Court rendered in Criminal Appeal No.1238 of 2006 dated 05.07.2012. Mr.Agrawal, learned advocate has contended that the testimony of witnesses and the drawing of panchnama do not generate any confidence in case of prosecution and for that purpose Mr.Agrawal, learned advocate has relied upon the case of Ritesh Chakravarti vs. State of M.P. reported in (2006) 12 SCC 321. Mr.Agrawal, learned advocate has then contended that in any event from any corner of the evidence it cannot be said that prosecution has proved its case beyond reasonable doubt which was the prime duty of the prosecution. There is a clear assertion in testimony of witnesses that raid was carried out in the open public space where so many persons have gathered, however, surprisingly prosecution has not been able to examine any independent witnesses and the prosecution has audacity to claim witnesses from a distant place to justify their action and that has raised serious doubt to the credence on the case of prosecution. Mr.Agrawal, learned advocate has relied upon the decision of the Apex Court in the case of Ritesh Chakarvarti (supra) and submitted that therefore in such circumstance benefit of doubt must be given.
4.3 Yet another contention is raised by Mr.Agrawal, learned advocate that godown register has not been placed along with the complaint which is the requirement and therefore when the attempt was made to produce certified copy of the same as secondary piece of evidence the same was objected and that Page 16 of 55 HC-NIC Page 16 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT has not been considered in its true perspective and therefore only after when an application was filed for production vide Exh.33, copy of the godown register was placed on record and therefore it is crystal clear that at the initial stage itself the complaint was not consistent with godown register and that has proved to be undisputed and for that purpose Mr.Agrawal has placed reliance on the decision reported in case of State of Rajasthan vs. Gurmail Singh reported in (2005) SC 1578.
4.4 It has further been contended that from testimony of witness Mr.Sanjay Patel, reflecting at page:265 of paper book compilation, from the cross examination of this witness the complaint appears to have been filed without any cogent material and thereby has affected the right of making effective representation. The prosecution ought to have established that there was an authority available at the time of filing complaint and in addition thereto godown register was also not produced along with complaint. The report of Nazir about production of material at the time of complaint indicates that no register was produced at the relevant point of time and the same has been produced after almost period of 2-3 months from the date of the complaint. From the record, it appears that the complaint came to be filed on 21.06.2008. The order below Exh.83 about production of godown register passed on 01.06.2009 and the deposition in the form of cross examination took place on 20.07.2009 which clearly indicates, as per the say of Mr.Agrawal, learned advocate for the accused that with a view to fill up lacuna the said order below Exh.83 was passed. Again it has been contended that Prosecution Witness Sanjay Patel is wholly not reliable and apart from this, after conscious Page 17 of 55 HC-NIC Page 17 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT possession having been found as per the case of prosecution, said incriminate circumstance in the form of question must have been put to the accused under Section 313 statement and therefore such incriminating material having not been put to the accused persons the trial gets vitiated for non- compliance of such obligatory discharge of duty. In addition thereto it has been further contended that report which is visible at page-842 indicates that no qualitative test of recovered material is undertaken. Even the qualititative analysis has not been done and the case is made out as if entire quantity which has been recovered is a contraband article Charas. It has been pointed that definition of of Charas indicates that to ascertain the same scientific analysis is required to be undertaken and it has not been done in proper form as required. Even the finger prints of driver has not been taken and therefore also it cannot be said that prosecution has established case beyond reasonable doubt and therefore conviction appeal is required to be allowed and consequently enhancement appeal filed by the State deserves to be dismissed. Mr.Agrawal, learned advocate has further contended and left it to the Court in a casual manner that written arguments have been tendered in the Court below in view of Section 214(1) of Cr.P.C and the same may be treated as part and parcel of contention as if it has been raised before the Court and by making such submission in this regard it has been contended that entire appeal deserves to be allowed. Mr.Agrawal, learned advocate has ultimately contended that practically every point is covered by the case-law and therefore in view of decision delivered by the Apex Court in the case of Suganthi Suresh Kumar vs. Jagdeeshan reported in AIR 2002 SC 68, the judicial discipline requires whereby Page 18 of 55 HC-NIC Page 18 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Apex Court considers the case or not cannot be given a leverage to cite law or overlook the decision and therefore Mr.Agrawal has contended that overall analysis of the evidence is clearly indicative of the fact that no case is established against the respondent beyond reasonable doubt by the prosecution. Mr.Agrawal, learned advocate has given list of authorities which he has relied upon in the background of present facts and circumstances as many as 52 in numbers but only relevant authorities according to him have been brought to the notice during the course of argument and therefore by referring to such at an appropriate stage of judgment the same will be dealt with. However, the list of such authority is reproduced hereinafter.
(1) AIR 1994 SC 1872, State of Punjab vs. Balbir Singh, (2) (2002) 9 SCC 363, Chhunna @ Mehtab vs. State of M.P., (3) 2013 AIR (SC) (Cri.) 1630, Raj Kumar Singh vs. State of Rajasthan, (4) Criminal Appeal No.962 of 2000 decided on 30.08.2005 in case of Ballu @ Balram vs. State of Gujarat, (5) Criminal Appeal No.2355 of 2010 in case of Pala Singh vs. State of Haryana, (6) AIR 2002 SC 1810, Beckodan Abdul Rahiman vs. State of Kerala, (7) 2012 Cr.L.J. (Guj.) 565, Alu Hussein Bakarali Saiyed vs. State of Gujarat, (8) AIR 2005 SC 1578, State of Rajasthan vs. Gurmail Singh, (9) AIR 1994 SC 117, Valsala vs. State of Kerala, Page 19 of 55 HC-NIC Page 19 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT (10) Decision rendered in Criminal Appeal No.305 of 2006 in case of Union of India vs. Jagvir Singh, (11) Decision rendered in Criminal Appeal Nos.1210 of 2011 with 1513 of 2011 with 1540 of 2011 with 141 of 2012 with 278 of 2012 dated 07.04.2015 in case of Sanjay Patel, Intelligence Officer vs. Mohammad rfan Gulam Zafar Shaikh and ors.
(12) 2009 (2) Acqui.161 SC, Union of India vs. Shah Alam, (13) 2006 (12) SCC 321, Ritesh Chakarvarti vs. State of M.P., (14) (2010) 10 SCC 219, Kuldeep Singh vs. State of Punjab, (15) AIR 2002 SC 3343, Avtar Singh vs. State of Punjab, (16) (2003) 12 SCC 291, State of Gujarat vs. Ismail U. Haji Patel, (17) (2004) 10 SCC 562, Jitendra vs. State of M.P., (18) (2004) 1 SCC 450, Dilip vs. State of M.P., (19) 2016 (2) Acqui. 221 SC, State of Rajasthan vs. Jag Raj Singh @ Hansa, (20) (2016) 1 SCC (Cri.) 96, Makhan Singh vs. State of Haryana, (21) 2013 (2) SCC 502, Kishan Chand vs. State of Haryana, (22) (2012) 1 SCC (Cri.) 555, Nirmal Singh Pehlwan vs. Inspector, Customs, (23) (2008) 9 SCC 329, Basavaraja vs. State of Karnataka, (24) 2015 SAR (Cri.) 91, Sukhjit Singh vs. State of Punjab, (25) Decision rendered in Criminal Appeal No.902 of Page 20 of 55 HC-NIC Page 20 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT 2009 in case of Manjit Singh @ Raju vs. State of Punjab, (26) AIR 2011 SC 1939, Narcotic Control Bureau vs. Sukh Dev Raj Sodhi, (27) (2011) 11 SCC 559, State of Rajasthan vs. Tara Singh, (28) Decision rendered in Criminal Appeal No.305 of 2006, Union of India vs. Jagvir Singh, (29) (1995) 3 SCC 610, Saiyed Mohd. Saiyed Umar vs. State of Gujarat, (30) (2013) 2 SCC 212, Sukhdev Singh vs. State of Haryana, (31) (2001) 1 SCC 35, Bhola Ram Kushwaha vs. State of MP, (32) 2004 Cri.Law Journal 2480, Union of India vs. Vidya Bagaria, (33) 2012 (2) Cri.721, Radhey Shyam vs. Union of India, (34) AIR 2005 SC 1389, Rajesh Jagdamba Avasthi vs. State of Goa, (35) Decision rendered in Criminal Appeal No.771 of 2009 in case of Sarjan Lala Yadav vs. State of Gujarat, (36) Decision rendered in Criminal Appeal No.271 of 2009 with Criminal Appeal No.351 of 2009 in case of Syunuskhan H. Pathan vs. Intelligence Officer, (37) 2010 Cri.L.J. (Guj.) 673, Kakadiya Bhagwanbhai Arjanbhai Patel vs. State of Gujarat, (38) 2016 (2) Acqui. 694 (H.P.), Deu Bhan Buda vs. State of H.P., (39) 2016 (2) Acqui. 568 (H.P.), State of Himachal Page 21 of 55 HC-NIC Page 21 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Pradesh vs. Anil Kumar, (40) Decision rendered in Criminal Appeal No.1238 of 2006 with Criminal Appeal No.1338 of 2006 in case of Bharatbhai R. Dehdha vs. State of Gujarat, (41) 2013 SAR (Cri.) 1093, Kamlesh Prabhudas Tanna vs. State of Gujarat, (42) AIR 2002 SC 289, Bahadur Singh vs. State of M.P., (43) 2015 SAR (Cri.) 1142, P.Satyanarayana Murthy vs. Dist. Inspector of Police, (44) (2000) 10 SCC 257, Ismailkhan A. Pathan vs. State of Gujarat, (45) 2014 SAR (Cri.) 802, Thimmareddy vs. State of Karnataka, (46) (2012) 5 SCC 226, Myla Venkateswarlu vs. State of Andhra Pradesh, (47) AIR 2009 SC (Suppl.) 1811, Union of India vs. Bal Mukund, (48) AIR 2014 SC 1384, State of Rajasthan vs. Parmanand, (49) AIR 2005 SC 1578, State of Rajasthan vs. Gurmail Singh, (50) Standing Instruction No.1/1988 dtd.15.3.1988 issued by Narcotic Control Bureau, New Delhi, (51) Decision rendered in Criminal Appeal No.743 of 2000 dated 31.07.2014 in case of State of Gujarat vs. Manojkumar M. Shukla and (52) AIR 2005 SC 2917, Balwinder Singh vs. Asstt.Commissioner.
4.5 In the aforesaid manner by contending and citing the decisions, Mr.Agrawal has ultimately requested the Court that Page 22 of 55 HC-NIC Page 22 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT now since more than enough period is languished by the appellant accused in jail, the said factor also be considered and appeal may be disposed of by setting aside the impugned judgment and order.
5. To oppose the stand taken by Mr.Agrawal, learned advocate Mr.Kartik Pandya, learned advocate appearing for respondent Narcotic Control Bureau with assistance of Ms.Hansa Punani, learned Additional Public Prosecutor has vehemently contended that there is no error committed by learned judge in passing the impugned judgment and order and for that purpose in the following form Mr.Pandya raised various contentions.
5.1 By referring to testimony of three important witnesses P.W.No.1 Vipul Bhikhabhai Patel recorded at Exh.19, P.W.No.2 Sanjay Vishwanath Gokhle recorded at Exh.27 and P.W.No.3 Shri Sanjay Ashokbhai Patel, an Intelligence, Mr.Pandya has contended that are no discrepancies in said testimony of prime witnesses of the prosecution. This testimony has clearly inspire confidence and there was no justifiable reason for the Court to discard the evidence and therefore rightly been appreciated in true perspective. Mr.Pandya has further contended that seizure panchnama has been drawn and the same has been substantiated and in addition thereto the medical analysis report has also yield positive result which would go to show that substance which has been collected and seized is contraband material. Mr.Pandya further contended that statement of Mr.Sushil Joshi, Manager of Regal Hotel at Ajmer recorded under Section 67 of the Act wherein the said witness has specifically stated that all the accused persons along with Page 23 of 55 HC-NIC Page 23 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Julekhaben were residing in hotel for a period of two days and they left hotel on 26.12.2017 and in response thereto this testimony further substantiated by production of hotel register in which names of respondents accused are figured at page.855 of paper book compilation and therefore it can be said that the cogent evidence against the accused has been led by the prosecution. Mr.Pandya has further contended that upon perusal of documentary evidence produced on record including the statement of appellants recorded under Section 67 of the Act not only has confirmed the activity of respondents accused during the investigation but has also confirmed and established conscious possession and recovery of contraband material and therefore conscious possession aspect has also been proved beyond reasonable doubt by the prosecution case and this has been established further by the panchnama recorded at Exh.20 confirming the fact that there was contraband material in car which has been seized and that has been shown by one of the accused persons.
5.2 Mr.Pandya, learned advocate has further submitted that there is a intelligence note put up by Intelligence Officer at Exh.28 who reported to his superior officer to the information received regarding transportation of all contraband material and the same was endorsed by the Zonal Director, NCB and on the same day instructions were given to arrange the team and take necessary action in response to the said information and therefore from this material at Exh.28 the prosecution has proved beyond reasonable doubt the sufficient compliance of requirement of Section 42(2) of the Act. The said requisite provisions appears to have been complied with which is being further corroborated by material put up by prosecution at Page 24 of 55 HC-NIC Page 24 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Exh.39 and 63 respectively. Therefore there is complete compliance of procedural aspect while conducting the operation against the respondents. Mr.Pandya, learned advocate has further contended that at Exhs.40 and 41 a sufficient material is led by the prosecution to prove the factum of sealing and transmission of sample to the FSL office / laboratory for further analysis and this is also in strict compliance of guidelines recorded to it and therefore when the proper sealing has been made and the contraband samples have been transmitted to the FSL and in turn the report of the report laboratory has also confirmed that substance which has been seized is contraband article named Charas and therefore there is no other reason to discard any other evidence and therefore learned judge has rightly applied his mind to examine this issue. Mr.Pandya, learned advocate has further contended that the statements of the appellants accused at Exhs.33, 36 and 60 are properly recorded which has been validly established during the course of trial and such statement having no infirmity of any nature about its admissibility, the learned judge has given rightly due weight- age to the same for passing the judgment and order. The appellants accused were conveyed about the their rights either to remain silent or to give any statement and also were also conveyed that such statement may be used against them in form of evidence and therefore being so such admissible statement of the appellants rightly have been relied upon by learned judge in passing the order of conviction. Mr.Pandya, learned advocate has further submitted that there is specific statement in intimation note which has been signed by the appellants that they were very much informed about their right as per Section 50 of the Act and it is they themselves have Page 25 of 55 HC-NIC Page 25 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT abstained from exercising such right and therefore in view of settled legal position Section 50 compliance is also in affirmative with the reasoning which has been assigned. In addition thereto Mr.Pandya, learned advocate submitted that more than commercial quantity has been seized from the appellants accused i.e. about 40 kg of Charas and this being an offence against society there is no issue with regard to showing any leniency or mercy. On the contrary after collecting huge quantity of Charas, the appellants have committed serious offences which has been established by prosecution and for that purpose Mr.Pandya has relied upon following decisions to strengthen his aforesaid submission.
(i) AIR 2002 SC (Cri.) 806, Khet Singh vs. Union of India,
(ii) 2016 (4) SCC, State through Intelligence Officer NCB vs. Mushtaq Ahmad etc.,
(iii) 2015 (6) SCC 222, Mohanlal vs. State of Rajasthan,
(iv) 2010 (4) GLR 2985, Abdul Salim Abdul Minaf Shaikh @ Salimbhai,
(v) 2015 (6) SCC 674, Kulwinder Singh vs. State of Punjab,
(vi) 2009 (8) SCC 539, Karnail Singh vs. State of Haryana,
(vii) 2011 (1) GLH 527, Vijaysinh Chandubha Jadeja vs. State of Gujarat,
(viii) 2010 (9) SCC 85, Dehal Singh Dineshkumar vs. State of Himachal Pradesh,
(ix) 2015 (6) SCC 664, Kishan Kumar vs. State of Haryana,
(x) 2013 (14) SCC 420, Glan Chand vs. State of Page 26 of 55 HC-NIC Page 26 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Haryana,
(xi) 2011 (15) SCC 187, Surjitsinh vs. State of Punjab,
(xii) 2008 (11) SCC 408, State of Rajasthan vs. Usail Lal,
(xiii) AIR 2002 SC 1450, Khetsing vs. Union of India,
(xiv) 2010 (15) SCC 157, State of Maharashtra vs. Jayantilal and
(xv) 2004 (3) SCC 453, State of Punjab vs. Makhan Chand
6. In view of above circumstances which have been brought to the notice and in view of the fact that various contentions have been raised by respective sides appearing in case a comprehensive analysis of evidence in co-relation with the contentions canvassed before the Court following are the circumstances which are worth to be taken note of to arrive at an ultimate conclusion.
6.1 First of all the evidence indicates that contraband article, which was seized by the prosecution, was found to be 'Charas'. It is revealed from testimony of main witnesses viz. Circle Officer Vipulbhai Bhikhabhai Patel, who stood as PW:1, whose testimony is reflecting at Exh.19, has indicated that when from the car driver Maniyar has taken out 20 packets from back side of seat, the said substance was tested with testing kit bag which was kept at the spot by the team and testing report found said substance was 'Charas' and the said contraband article was to the extent of 40 kg and more. It is revealed that after finding positive test report about the substance, simultaneously the same was also sent for further analysis to the laboratory and the report of said laboratory, which is at Page 27 of 55 HC-NIC Page 27 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Exh.41 reflecting on page:843-845 has clearly indicated that substance is 'Charas' and therefore it has been clearly revealed that whatever article, which has been seized, is found to be Charas as contraband article which has clearly attracted the penal consequences under the Act. In addition to this, the commercial quantity which has been specified by virtue of Notification published in exercise of powers under Section 2 of the Act has clearly indicated that the commercial quantity which has been fixed is 1 kg whereas the quantity which has been seized from the car is far more than the commercial quantity which has attached seriousness to the incident in question and therefore prima facie from the testimony of the witnesses, from the analysis report by the laboratory and the quantity aspect has been established beyond reasonable doubt by the prosecution as it is revealing from the version of witnesses and that appears to have been rightly relied upon by learned judge.
6.2 Apart from this, while conducting raid after sunset and before sunrise, the procedure which has been contemplated to be exercised mandatory also appears to have been observed as emerging from record. The law requires that wherever any search or seizure takes place, there must be proper authorisation as contemplated under Section 42 of the Act. Now whether the officer concerned of a raiding party has observed this requirement of statute is followed or not can be culled out from the testimony of witness who has deposed that upon receipt of secrete information, the same was reported to the immediate higher authority and only thereafter upon instruction they proceeded further for onward action. Now this fact is substantiated by the Prosecution Witness No.2 Page 28 of 55 HC-NIC Page 28 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT Mr.Sanjay Gokhle, who was examined at Exh.27, it is categorically stated that upon secrete information received at about 6=00 pm on 26.12.2007 the information was typed out and reported to Zonal Director and pursuant to said reporting to immediate Zonal Officer, the onward action has been taken and this fact is revealed from the testimony of PW:2 which if to be compared with documentary evidence led by the prosecution it reflects compliance of the said requirement. The paper-book compilation which is reflecting on page:805, a communication dated 26.12.2007 wrote by Intelligence Officer NCB, Ahmedabad, which is produced at Exh.28 has clearly indicated about the fact of secrete information received by him reported to Zonal Director the immediate superior authority and got authorisation in that regard which indicates that said process was undertaken in compliance of requirement of Section 42(2) of the NDPS Act, 1985. Upon receipt of said intimation from Intelligence Officer the immediate higher authority i.e. Zonal Director appears to have instructed to form a team and take immediate necessary action which is reflecting from page:805 of paper-book compilation and therefore it can safely be said as has been rightly observed by learned trial judge that there appears to be a substantial compliance of Section 42(2) by the officers of the team and therefore this fact is clearly emerging that authorities were conscious about the statutory requirement as stipulated under the Act. Now so far as the involvement of the present respondent accused is concerned, the main witnesses to the prosecution have not only established unequivocally their presence on the spot with contraband material from their conscious possession, their statements have been recorded, the necessary panchnamas have been carried out and it has Page 29 of 55 HC-NIC Page 29 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT also been revealed that on the spot where the seizure took place there was gathering of crowd and on account of insufficient light which has constrained the officers to carry out panchnama left out portion at the office and the same was with the consent of the respondents accused as is revealing from the record particularly when panchas as well as officers and the accused persons altogether came to the office and necessary process has been carried out. Now this can be looked into from the very fact in the internal page:4 the testimony of P.W.No.2: Sanjay Gokhle has indicated in his version that the Field Testing Kit has been applied wherein it has been found positive with regard to substance, the same was carried out in the presence of accused persons and on account of the fact that the thickly populated area and the deficiency of the light has ultimately constrained the further process of seizure at the office. Resultantly they themselves accompanied the accused persons in the car, went to the office and completed the procedure of sealing as well as procedure of drawing of seizure panchnama, at Exh.20. At the time when the summons came to be issued in view of Section 67 of the Act not only the signature is taken by Issuing Officer but the accused persons have also been explained, their signatures are taken after making them understand about the consequence as well and after the said process having been undertaken muddamal recovered and was sent to Deputy Chemist, CRCL, New Delhi for analysis purpose. The testimony of Mr.Gokhle has also further suggests that every process of sealing, sampling and seizure of the material is carried out in the presence of the accused persons at office and therefore there is substantial compliance of the relevant provisions of the NDPS Act has been observed by the authority which has Page 30 of 55 HC-NIC Page 30 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT appeared to have been appreciated by the learned judge.
6.3 In furtherance of this, necessary samples were taken out and left out substance was sealed pack and kept with the godown keeper at the safe place. The godown keeper has also admitted in his cross examination that samples were kept at muddamal custody and for that purpose necessary entries were also made in the godown register which has been produced on record at a later point of time with the permission of the Court and the said fact has also been examined and concluded in favour of the prosecution by the trial Court. This fact of the circumstance related to muddmal article has been emerging from the Prosecution Witness No.3 viz Sanjaybhai Ashokbhai Patel, Exh.58, and therefore from the deposition of relevant witnesses who have been examined a conscious possession not only has been reflected but also required procedure having been observed is clearly emerging from the record. In substance, the substantial compliance of the requirement of law is revealing from the testimony of witnesses in comparison with the documentary evidence led by the prosecution.
6.4 Yet another factor which is reflecting with regard to godown register, there is a specific order passed below Exh..83 in Sessions Case No.178 of 2008 reflecting at page:957 of the paper-book compilation in which also a specific request was made by the prosecution before the learned judge and with the permission vide order dated 16.06.2009 the godown register appears to have been presented as a part of the evidence by the prosecution. The entry with respect to the said godown register is reflecting at page:961 of paper-book, a compilation Page 31 of 55 HC-NIC Page 31 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT which is at Exh.83 in which also at serial no.48 in column the same is with regard to quantity which has been seized by the officer from the accused persons which clearly indicates that there is sufficient corroboration with regard to factum of conscious possession and the process which has been carried out as per requirement of law which appears to have rightly been appreciated by the learned judge.
6.5 In addition thereto, the evidence has further reflected about the compliance of the ascertainment of ownership of car. The testimony of Mr.Sanjay Gokhle, an Intelligence Officer, has indicated that required steps have been taken and therefore there appears to be no legal infirmity with regard to the steps taken by authority. Even for complying requirement of Section 50(5) an attempt was made to take the accused persons to the nearest Gazetted Officer or Magistrate, the same was informed to the accused but it is the accused persons who have chosen not to be taken to such officer and therefore from the aforesaid circumstance even there appears to be compliance of provisions and the procedure contained under Section 50 of the Act which has also been considered by the learned judge and therefore it appears that the reasons which are assigned are not perverse in any form as has been visible. Apart from this, it is clearly found and concluded by learned trial judge that what has been seized is the substance analysed as 'Charas' and what has been seized is much more than commercial quantity and therefore prosecution has established the case specifically against the respondents accused. About the conscious possession of the said contraband articles seized by the authority two officers along with panchas have clearly deposed before the Court in their Page 32 of 55 HC-NIC Page 32 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT testimony which has proved the case against the respondents accused beyond reasonable doubt as it has been found by learned judge. The material fact which has also been observed from the entire record by learned judge that while sending muddamal for analysis or prior thereto it is not the case of respondents accused in any way that there was a tampering with either the seal or with the substance and therefore there appears to be no germane reason as found by the learned judge to pass an order of acquittal against the respondents accused and therefore upon comprehensive analysis of the entire evidence undertaken by the learned judge it has specifically been found that in specific terms the case has been set up and established which in no circumstance appears to be unreasonable looking to the independent analysis of evidence on record.
7. Now, in the context of aforesaid observations emerging from and in consonance with the record of the case, to deal with the authorities which have been cited by the respective sides, the Court has found that large numbers of authorities have been thrashed upon on record of the case, however, the Court has, in the background of this peculiar set of circumstance, has chosen to deal with most relevant authorities cited in the context of evidence available on record.
7.1 Before dealing with the respective authorities, the statutory provisions which have got relevance to the incident in question are also wroth to be taken note of. The NDPS Act, 1985 has been enacted with a view to make stringent provisions for control and regulations of operations relating to narcotic drugs and psychotropic substances which had been Page 33 of 55 HC-NIC Page 33 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT found that stringency was to be added for which the enactment has come into effect in more rigorous way. Section 2(iii) is dealing with "cannabis (hemp)" which means 'charas' that is the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. Section 2 (viia) defines "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette and in respect of this, the Notification has also been published by the authority in view of this definition clause in supersession of earlier Notification. The perusal of the said Notification specifying the small quantity and commercial quantity contains cannabis and cannabis resin which includes Charas, Hashish and item No.23 of the said Notification has stipulated commercial quantity as 1 kg. The "conveyance" is also defined under clause-(viii) of Section 2 of the Act which means a conveyance of any description whatsoever and includes any aircraft, vehicle or vessel. The word "illicit traffic" is also defined under clause-(viiib) of Section w in relation to narcotic drugs and psychotropic substances which means engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances. Again, 'small quantity' and 'import inter-State' have also been defined however since the case on hand is not attracting such definition it is not touched. However, on conjoint reading of these sections would indicate that a person who assists a narcotics trafficker in concealing Page 34 of 55 HC-NIC Page 34 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT the narcotics in his apartment so that the trafficker may avoid detection, is involved in illicit traffic. Further provision relating to the issue is a statutory provisions contained under Chapter- 3 of the the Act where Section 8 is dealing with prohibition of certain operations which mandates a person not to carry out any activity which can be referred to as tranship of any narcotic drug. Relevant abstract of Section 8 reads as under:
"8. Prohibition of certain operations. - No person shall -
(a) ....
...
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or pscyhotropic substance....."
and therefore, the effect of this section is to hold the person guilty of possession, the authority has to establish the test of ascertaining conscious possession and once the article is found in possession of accused, it could be presumed that he was in 'conscious possession'.
7.2 Yet another provision which is to be looked into is Section 24 which deals with punishment for external dealings in narcotic drugs and psychotropic substances. Section 25A is stipulated to deal with violation of Section 9A is punishable with rigorous imprisonment which may extend to ten years and also fine to the extent of Rs.1 lakh. Section 29 is dealing with punishment for abetment and criminal conspiracy wherein the reading of clause indicates that where a person possessing illicit drug does not carry it himself but entrusts it to some other person for carriage in a car and that person carries it Page 35 of 55 HC-NIC Page 35 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT knowingly, then the driver of the car would be the person who transports the drug, and the person who directs him to do so would be the abettor of the offence of transporting. To curb such kind of offence, Section 36A has stipulated the offences to be tried by Special Courts and the Courts are constituted in area specified by Notification and the Special Courts are entrusted with the power to take cognizance of an offence to deal with such activity and offender. Chapter-5 of the Act is dealing with the procedure aspect which requiring authority to comply with the same and as it is a special statute has to be scrupulously observed even in respective procedure. Section 41 of the Act is dealing with power to issue warrant and authorisation and Section 42 is dealing with power of entry, search, seizure and arrest without warrant or authorisation. For the purpose of this case on hand relevant section which is required to be examined is the compliance of Section 42 which reads as under:-
"42. Power of entry, search, seizure and arrest without warrant or authorisation - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a person, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building conveyance or enclosed place, may between sunrise and sunset, -
(a) enter into an search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any Page 36 of 55 HC-NIC Page 36 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of this belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
7.3 Section 43 deals with the power of seizure and arrest in public place which also requires to be quoted hereinafter.
"43. Power of seizure and arrest in public place.- Any officer of any of the departments mentioned in section 42 may -
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company."Page 37 of 55
HC-NIC Page 37 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT 7.4 Section 49 deals with power to stop and search conveyances which authorising an officer to stop and search conveyance which officer must have an authority under Section 42 of the Act and if he has reason to suspect that any animal or conveyance is, or is about to be used for the transport for any narcotic or psychotropic or controlled substance in respect of which he suspects that any provision of act has been or likely to be contravened at any time is entitled to stop such conveyance or animal, n the case of an aircraft, compel it to land.
7.5 Section 50 of the Act has stipulated certain conditions in which search of persons shall be conducted. The manner and method is prescribed under this statutory provision which also has got relevance in the case on hand and therefore the conjoint effect of this statutory provisions indicates that it is a well defined as contained in the Code which authorises the officer to deal with heavy hand the narcotic drugs or psychotropic substance. The onus is also about possession of resin articles and the presumption is to be raised unless and until the contrary is proved. As a part of procedure upon arrest and seizure, necessary report is also required to be sent to immediate official superior as contained under Section 57 of the Act and therefore the entire provisions which are made in such a balance manner whereby not only stringently the activity of narcotic drugs and its supply be controlled and curbed, at the same time the authorities are put under check in exercising powers not to act unfairly is also maintained while acting under such statutory provision. Now in context of this, as we have seen earlier that there is a substantial compliance Page 38 of 55 HC-NIC Page 38 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT with regard to seeking authorisation from the superior authority before taking step against respondents accused. It has also been reflected from evidence that search and seizure procedure has also been undertaken in due regard to the statutory provision and in addition thereto, there seems to be a substantial compliance of Sections 42 as well as Section 50 of the Act as is reflecting from and so far as compliance of Section 50 is concerned, it has come in the evidence that it is the respondents accused themselves who refrained from going to Magistrate or Gazetted Officer and therefore the evidence on record indicates that there appears to be a substantial compliance of the provision and procedure contemplated under the Act and therefore it appears to this Court that there seems to be no perversity or legal infirmity of such nature in the order which results into miscarriage of justice.
8. Now in the context of aforesaid circumstance prevailing on the case on hand, the authorities which are first of all cited by learned advocates representing the accused persons, we may deal with the same but with a propositions in mind that each case depends on its own factual matrix and it is settled proposition of law that if there is a slight change in fact the same would make a world of difference and keeping this proposition in mind we, first of all, take up the decisions which are cited by counsel appearing for the appellants accused.
8.1 Mr.Agrawal, learned advocate for the accused has, first of all, relied upon the decision delivered by the Apex Court in case of State of Punjab vs. Balbir Singh reported in AIR 1994 SC 1872 mainly on the issue of violation of Section 42 of the Act and another decision on the very same subject about Page 39 of 55 HC-NIC Page 39 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT issue relating to Section 42 itself cited in case of Chhunna @ Mehtab reported in (2002) 9 SCC 363. By citing this authority, first of all a decision reported in case of Balbir Singh (supra) a point had projected about non-compliance of Section 42 of the Act. A reading of this decision not only indicates a different set of circumstance than what has been in the case on hand, in head-note 'B' of the said decision it has been propounded that empowered officer has to carry out the process in strict compliance failing which the trial got vitiated. Now conjoint reading of said statutory provision of Sections 41, 42 and 50 of the Act in the case on hand indicates clearly that there is specific authorisation obtained prior to carry out search and seizure process. In the present case, not only that but it has also got authorisation in writing to formulate a team and to initiate appropriate immediate steps and on the basis of it the process has been undertaken by team formed under NDPS Act. Yet another circumstance which is coming out from the fact that accused persons were given an opportunity to be taken either before the nearest Gazetted Officer or nearest Magistrate in respect of search their persons, but it is the accused respondents themselves who refrained from availing such compliance and therefore in substance on the case on hand it does not appear that there is any non-compliance of Sections 42 or 50 of the Act and therefore the background of the fact that is deviated from facts which has been entangled in aforementioned decision which has been cited.
Similar is the case with respect to the decision relied upon in case of Chhunna @ Mehtab vs. State of MP reported in (2002) 9 SCC 363 wherein also the principal judgment has got different facts situation than what has been Page 40 of 55 HC-NIC Page 40 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT in the case on hand and here it has been amply clear from the record that there is substantial compliance of statutory provisions as discussed above.
8.2 Mr.Agrawal, learned advocate for the respondents accused has further relied upon the another decision in case of Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan reported in AIR 2013 SC (Cri.) 1630, wherein the case has background of offences under Sections 302, 376 and 201 of the Indian Penal Code. No doubt, the observations regarding appreciation of evidence are elucidating but careful consideration of the evidence on record indicates that there is no suspicion of any nature that respondents have not committed any offence. In, fact situation from the entire material which has been concluded by Court below and there appears to be no inconsistency between the conclusion arrived at by learned judge and the testimony of witnesses and therefore by respectfully agreeing with the propositions laid down by aforesaid decision, we deem it proper not to apply it in the present fact situation for obvious reason that detailed discussion and the comprehensive analysis is clearly reflected commission of crime by the respondents accused and therefore this judgment is of no avail to learned advocate. Mr.Agrawal, learned advocate has further tried to rely upon decision delivered by this Court in case of Raimal @ Viro Rajabhai Somabhai Rabari vs. State of Gujarat reported in (2016) 2 (Acqui.) 780 (Guj.) wherein in the background of peculiar set of circumstance of that case the Court appears to have opined that prosecution is duty bound to prove final FSL report, charge of prosecution cannot be held to be proved beyond reasonable doubt. But here as stated earlier that the Page 41 of 55 HC-NIC Page 41 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT case appears to have been proved beyond reasonable doubt on the issue of violation of statutory provision of the act on the issue of commission of crime by respondents accused as also on the issue of compliance of mandatory procedure enunciated by some of the provision and it has also been found from the respondents accused as a part of conscious possession which is not in doubt and therefore when every circumstance reflecting and pointing fingers towards respondents accused it cannot be said that such authorities which are cited in casual manner can come to rescue to the appellants and therefore by respectfully agreeing with the propositions laid down the background of this fact on hand is not permitting upon to rely upon the said authority. Godown register, as reported, has been produced on record established beyond reasonable doubt by virtue of a specific order which has not been carried further nor challenged by the respondents accused and therefore it is illfounded in the mouth of the appellants accused to contain such thing that it has already come on record by virtue of judicial process. Yet another decision has also been tried to be relied upon in the case of Bekodan Abdul Rahiman vs. State of Kerala reported in AIR 2002 SC 1810 wherein it s related to compliance of Sections 42 and 50 of the NDPS Act. In the said decision, the Hon'ble Apex Court had an occasion to examine the evidence of prosecution whereupon the Apex Court found that there was violation of Section 42(2) of Act read with Section 50 of the Act. Now coming back to the case on hand, as stated earlier, so far as compliance of section 50 is concerned, it is the respondents accused who have not to be searched in presence of Gazetted Officer or Magistrate and therefore it cannot be held to be violated and further so far as compliance of Section 42(2) is concerned, there appears to be Page 42 of 55 HC-NIC Page 42 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT proper authorisation obtained by analysis officer before carrying out entire process and therefore this judgment appears to be of not availed to the appellant accused. So far decision delivered by Gujarat High Court in case of Ali Hussein Bakarali Saiyed vs. State of Gujarat reported in 2012 Criminal Law Reporter (Guj.) 565, the issue was related to the seizure of sample done at NCB Office and not at the spot and therefore compliance of Section 42(2) appeared to be violated. Now so far present case is concerned, as we have stated that, when with an aid of proper authorisation and upon information to immediate superior officer, team was formulated and search and seizure taken place, a part of process was to carry out the seizure of muddamal at the spot, however, on account of deficit light and on account of gathering of crowd, it was not possible to undertake and carry out further process which has resulted into coming down to office of NCB along with accused persons and that process has not been carried out in the absence of accused persons. On the contrary, counter signatures have also been taken and therefore substantial compliance is undertaken as far as possible is clearly visible and therefore there appears to be no doubt about process being undertaken. Therefore this judgment since has got a different set of circumstance under consideration, the same cannot be applied in a straight jacket formula. Each fact, as stated earlier, has got its own background and therefore ratio cannot be applied without any context of fact. There are other decisions also cited by Mr.Agrawal, learned advocate for the appellants in the case of State of Rajasthan vs. Gurmail Singh reported in AIR 2005 SC 1578 and by referring to this a contention is sought to be raised that register was not produced in evidence to Page 43 of 55 HC-NIC Page 43 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT prove that seized article was kept in safe custody. No sample of seal was sent along with sample to excise laboratory for the purpose of comparing with the seal appearing on the sample. It is also surprising and rather annoying that bunch of authorities including irrelevant issues have been dumped on the face of the Court by learned advocate for the accused to divert the attention of the Court. Now here, as stated earlier, that there was specific order of the Court below Exh.83 by virtue of which godown register has also been produced on record and that order has not been challenged by accused persons at any point of time and grievance is sought to be raised before this Court, in appeal. On one hand accused persons are not challenging the order by virtue of which register has been come on record and on the other hand raising contention that register has not been produced along with the complaint. This is something very irrelevant issue as an attempt to unnecessarily raising any issue just to create a confusion. Here part of the record has clearly indicated the fact which is stated herein above and therefore this judgment appears to have no bearing on the present fact. Most of the authorities which have been cited are not that much relevant having different set of circumstance altogether still placed on record and therefore this practice of dumping judgments relevant or irrelevant in larger numbers for canvasing the submissions is deprecated.
However, as a part of the duty, the submissions which have been raised are to be dealt with, the Court has undertaken a further exercise of examining the orders which are pressed into service and in response thereto yet another decision which has been cited in case of Valsala vs. State of Kerala reported in AIR 1994 SC 117 is required to be looked Page 44 of 55 HC-NIC Page 44 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT into. In this judgment, there was no evidence to indicate that article was seized and kept in proper custody in police station and further sending the very contraband to chemical analyzer was also found to be highly doubtful and therefore in that peculiar facts and circumstance of the case, the Apex Court was of the opinion that conviction cannot be sustained whereas the case on hand is having altogether a different factual background which the Court has narrated in earlier paragraphs and therefore this judgment is of no avail to the appellants. It has further been tried to rely upon a decision delivered by the Division Bench of this Court in case of Criminal Appeal No.1210 of 2011 and allied matters decided on 07.04.2015 which again had a different circumstance wherein chances of tampering was found to be probable and there was also an evidence on record in that case of circumventing the the go-down In-charge for retention of custody of contraband article and therefore the Apex Court of that case has no bearing upon the present facts. Thus, the nature of evidence in the said case with regard to safeguard of contraband article had persuaded the Court to raise a presumption against the prosecution and therefore as stated earlier if the facts are different then the ratio cannot relied upon as a matter of course and therefore cannot be applied as straight jacket formula.
8.3 The appellant has further relied upon a decision reported in 2009 (2) Acqui.161 SC, Union of India vs. Shah Alam in which the recovery of heroin substance was made in complete violation of principles and provisions of Section 50 of the NDPS Act and therefore in that eventuality the order came to be passed whereas here as stated earlier there appears to be a Page 45 of 55 HC-NIC Page 45 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT complete deviation of facts and therefore legal proposition is to be viewed provided the same is supported by the facts of this case. A careful consideration of the background of present fact would clearly indicate that there appears to be a substantial compliance of provisions of NDPS Act and therefore the principle laid down is not possible to be applied mechanically. There are other decisions also being brought on record by just tendering the detailed list and it left to the Court for consideration but as stated earlier the case of the prosecution has successfully been supported by the evidence on record and there appears to be even substantial compliance of the provisions of law and therefore there seem to be no legal infirmity in conclusion arrived at by the Court below. So far the decision delivered by the Apex Court in the case of State of Rajasthan vs. Gurmail Singh reported in AIR (2005) SC 1578 is concerned, the same was dealing with the Malkhana register having not produced to prove the seized articles kept in Malkhana and there was no evidence satisfactory enough about sealing and sampling of bottle immediately after seizure of contraband article. Here the case is not like that. On the contrary, proper care appears to have been taken care of as appreciated by the trial Court which requires no presumption of any contrary view and therefore decision cited is not applicable in the background of the present case.
8.4 In furtherance of his submission, Mr.Agrawal, learned advocate for the respondents accused, in usual manner, has placed the authorities without narrating and explaining the facts in detail and left it to the Court for its consideration and in that process we are not able to understand as to on which Page 46 of 55 HC-NIC Page 46 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT point which authority he is pressing into service. A list of 52 authorities have been given to the Court for consideration but with no clarification as to on which contention. Be that as it may, as it has been placed before us, we are to examine which are cited before us and as such a reference which has been made to a decision delivered by this Court on 05.07.2012 passed in Criminal Appeal No.1238 of 2006 with allied matters we have found that the contention tried to be raised is that seizure has not taken place where the panchnama is drawn. But here, in the case which has been referred to, the weight of the substance was done at the police station and there was serious doubt about the investigation. The Court, in that case also, has observed that investigation rilled under the clouds of doubt whether really such contraband was seized and weight as is claimed to have been done and in addition thereto the witness has not spoken that any sealed muddamal weighed by him or sealed at a place. Therefore we see that decision no doubt has propounded the proposition but the background of fact is appearing to be different and therefore we are unable to place our reliance to come to an ultimate conclusion.
8.5 Yet another decision which has been relied upon is reported in AIR 2002 SC 3343 wherein the facts were altogether different. In that particular case, the bags containing poppy husk seized from vehicle in which accused were travelling but accused was found driving vehicle and two others were sitting on the bags and two other occupants fled away as soon as vehicle was stopped and accused was not examined on the question of possession of bag whereas in the instant case, not only car was intercepted but the persons themselves have shown the bags related to contraband Page 47 of 55 HC-NIC Page 47 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT articles, consented to accompany to office to carry out other process and therefore background of the case, which has been sought, is altogether different fact scenario and therefore we are unable to apply it straightway in the present case.
8.6 Mr.Agrawal has further relied upon a decision reported in (2004) 10 SCC 562 wherein by referring to para:4 he has contended that if one issue is sufficient enough to arrive at conclusion, the Court need not to deal with other submissions but here we have already discussed evidence at length and observed that the case appears to have been established against the respondent accused. This decision is hardly of avail to the respondent accused. The other decision which has been tried to be pressed into service reported in (2007) 1 SCC 450 and by referring to the sections 42, 50 and 57 appears to have been interpreted by Apex Court in which case the mandatory requirement of Sections 50 and 42 were not complied with and the seizure witness did not support the case of the prosecution and informant was also not complying with requirement of Section 57. In that contextual facts, it was held that High Court could not have brushed aside all the findings of the Court below without meeting with the reasons assigned whereas the case on hand has a different factual matrix and therefore we deem it proper not to apply the case any further.
8.7 Mr.Agrawal has made reference of further several decisions but we find that those decisions are in the background of peculiar facts and circumstances and therefore we deem it proper not to elaborately discuss those decisions as having been considered by us. But the conjoint reading of the said decisions clearly reflect that the case on hand has a Page 48 of 55 HC-NIC Page 48 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT peculiar fact wherein the contraband material seized is established the same has been found much more than commercial quantity prescribed by Notification. We have also seen substantial compliance of section 42 of the Act and there appears to be no violation of Section 50 of the Act and therefore without narrating each authority in detail we find that the present case has been dealt with by learned judge in appropriate manner. There appears to be no such substantial legal infirmity which may warrant any interference and therefore we deem it proper to hold that view taken by learned trial judge appears to be in conformity with the statutory provisions and therefore we hereby deem it proper to affirm the order passed by the learned trial judge.
8.8 Now in the context of this factual background we have also gone through the decisions which have been cited by counsel for the respondent authority on various issues but having found ourselves satisfied about the procedural compliance as required under the various statutory provisions of the act coupled with the fact that contraband material is found to be a Charas of a huge quantity than the commercial quantity prescribed by Notification and therefore there appears to be no illegality in the order passed by the learned trial judge, however, at the same time, the case we find as not that of a case in which any enhancement of sentence is required to be awarded. There appears to be no special circumstance by virtue of which we deem it proper to enhance the sentence. On the contrary, on evaluation of evidence the learned trial judge has strike the balance in respect of awarding a punishment which we find to be reasonable and therefore we are of the view that enhancement appeal filed by the State has no Page 49 of 55 HC-NIC Page 49 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT substance and accordingly the same is not entertainable.
8.9 While coming to this conclusion, some of the issues are considered by us that panchnama at the spot has been drawn and thereafter accused persons have been taken to the office where the leftout panchnama was completed but there the evidence is suggesting that same was in conformity and knowledge with the accused persons. On the contrary, the accused persons were specifically asked for being brought before either learned Magistrate or Gazetted Officer and it is this very accused person who denied the same. Resultantly, no agitation can be raised at the behest of accused persons about violation of Section 50. On the contrary, specific formality appears to have been undertaken by asking and informing the accused persons and therefore there appears to be no violation of any of the provision or the procedure contained under Section 50 of the Act. On the contrary, in a case decided by Apex Court reported in AIR 2011 SC 964 it has been propounded by Section 50 of the Act can be involved only in a cases where the drugs / psychotropic substance is recovered in consequence of body search of accused and in case a recovery of psychotropic substance is made from a container being carried by individual the provision of Section 50 would not be attracted. However, apart from this, there appears to be a compliance of Section 50 of the Act by asking accused persons reflecting from the evidence on record and therefore considering this overall set of circumstance, we do not find any reason to interfere with the order of conviction passed by the learned trial Judge.
8.10 In addition to the aforementioned consideration by us of
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the evidence as well as the decisions sought before us, we find some of the decisions cited by the learned counsel for the Narcotic Bureau found to be relevant and worth consideration. The recent decision of the Apex Court in the case of State through Intelligence Officer, Narcotics Control Bureau vs. Mushtaq Ahmad reported in (2016) 1 SCC 315 the case is also related to the contraband item Charas in which also the quantity was beyond the commercial quantity prescribed by Notification and therefore keeping in view the object of the Act and the circumstances prevailing the Apex Court also found the conviction as just and proper and here in the case on hand also the quantity of Charas which has been found is much more than what has been prescribed under Notification and further the contraband article which has been seized is analyzed by laboratory as well as by site field kit as also determined the same as 'Charas' only and therefore when conscious possession of the accused is found unequivocally from the evidence on record, it cannot be said that any error is committed by learned judge in imposing sentence. We have also considered the decision delivered by Apex Court in case of Mohan Lal vs. State of Rajasthan reported in (2015) 6 SCC 222 wherein also it has been propounded that when substantial compliance of provisions of sections more particularly Sections 42, 43 and 57 of the NDPS Act is visible, no prejudice can be said to have caused and therefore considering the proposition laid down in respect of possession in respect of substantial compliance of provision and therefore we deem it proper to rely upon the said decision to come to an ultimate conclusion in the present appeal.
8.11 Yet another decision which has been relied upon by
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counsel for Narcotic Bureau reported in (2010) 4 GLR 2985 in case of Abdul Salim Abdul Munaf Shaikh @ Salimbhai vs. Narcotics Control Bureau wherein also the co-ordinate bench of this Court has propounded that if seizure of 'Charas' - a contraband material made by the authority, the weighing of it, taking samples of it packing of samples, sealing of samples etc. normally should be done at the place of seizure and not doing of said tasks at a place of seizure automatically does not render the seizure doubtful. Deviation from the standing instruction on investigation can be justified by a valid reason which valid reasons are very much reflected in circumstances prevailing in case on hand and therefore the said decision having bearing case on hand and therefore we have taken up the same for our assistance.
8.12 Yet another decision, which has been pressed into service reported in (2015) 6 SCC 674 in case of Kulwinder Singh vs. State of Punjab, also deals with the issue related to conscious possession since the said decision almost has a similar situation and therefore we also rely upon the same for arriving at ultimate conclusion. From the entire evidence on record in case on hand as we have already stated that conscious possession is established in the case beyond reasonable doubt in the present proceeding. There are several other decisions also pressed into service by counsel for Narcotic Bureau which we have taken into consideration while analysing the evidence in the contest of ratio laid down in those cases and upon over all circumstances we deem it proper to upheld the order of conviction passed in the case of original accused no.1 . Following are the decisions which we have also taken into consideration for our ultimate conclusion.
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(i) (2009) 8 SCC 539, Karnail Singh vs. State of
Haryana,
(ii) 2011 (1) GLH 527, Vijaysinh Chandubha Jadeja vs.
State of Gujarat,
(iii) (2010) 9 SCC 85, Dehal Singh vs. State of Himachal Pradesh,
(iv) (2014) 6 SCC 664, Krishan Kumar vs. State of Haryana,
(v) (2013) 14 SCC 420, Gian Chand vs. State of Haryana,
(vi) (2011) 15 SCC 187, Surjit Singh vs. State of Punjab,
(vii) (2008) 11 SCC 408, State of Rajasthan vs. Udailal
(viii) (2004) 3 SCC 453, State of Punjab vs. Makhan Chand
(ix) 2013 (1) GLR 43, Munsisinh Motilalsinh Avadhiya vs. State of Gujarat,
(x) AIR 2015 SCW 6174, Baldev Singh vs. State of Haryana,
(xi) 2009 (5) GLR 4321, Zakirhussain Shakurbhai Shaikh vs. State of Gujarat.
9. We have perused the decisions cited by the counsel for Narcotic Bureau. We have also perused the material on record in consonance with the reasons which are assigned for convicting the appellants accused by the learned trial judge and considering this, we feel that if this order of conviction is to be interfered with the same would frustrate the very object for which the act is enacted. We have found that object of the Act of 1985 is to make stringent provision for the control and regulation of operation relating to narcotic drugs and Page 53 of 55 HC-NIC Page 53 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT psychotropic substance and therefore despite aforesaid evidence available on record, if the conviction order is to be interfered with the same has got the effect of frustrating very object for which act is enacted and therefore we are of the considered opinion that the order of conviction is not required to be set aside. In addition thereto, we have perused the substance of appeal filed by the State seeking enhancement of sentence as we have stated earlier that this is not a fit case in which request of enhancement of punishment is to be considered and accordingly we do not incline to accept the appeal filed by the State seeking enhancement of punishment and we accordingly dismiss the same.
10. In the background of aforesaid facts, we dismiss Criminal Appeal No.1641 of 2010 filed by the State seeking enhancement of sentence, as well as we also dismiss Criminal Appeal No.464 of 2011, Criminal Appeal No.660 of 2011 and Criminal Appeal No.985 of 2011 filed by the accused persons against the order of conviction and confirm the judgment and order dated 21.06.2010 passed by the learned Additional Sessions Judge, Court No.14, Ahmedabad passed in Sessions Case No.78 of 2008.
11. So far as Criminal Miscellaneous Application No.2195 of 2014 preferred by the State in Criminal Appeal No.464 of 2011 is concerned, in view of the fact that we have already confirmed the order of conviction, the sale proceeds which was directed to be kept in Fixed Deposit by virtue of order passed by this Court on 01.05.2014 is now liable to be confiscated. Accordingly, Criminal Miscellaneous Application No.2195 of 2014 is disposed of.
Page 54 of 55 HC-NIC Page 54 of 55 Created On Sat May 06 03:23:02 IST 2017 R/CR.A/1641/2010 JUDGMENT (S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) Amit Page 55 of 55 HC-NIC Page 55 of 55 Created On Sat May 06 03:23:02 IST 2017