Gujarat High Court
Kamlesh Parmanand Gangwar vs State Of Gujarat on 15 October, 1998
Equivalent citations: (1999)3GLR2119
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT A.L. Dave, J.
1. The appellant along with two other persons was charge-sheeted for having committed offences punishable under Sections 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short) by Shahibag Police Station, and was tried, therefore, by they learned Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur for the same. The learned Additional Sessions Judge recorded the judgment and Order on 15-5-1993 in Sessions Case No. 152 of 1991 recording conviction of the appellant for the said offence and sentenced the appellant to undergo R. I. for a period of 15 years and imposed a fine of Rupees one lac and directed that in case of default in payment of fine, he shall further undergo R. I. for two years. The learned Additional Sessions Judge acquitted the other two persons who were charge-sheeted. Being aggrieved by the said judgment and Order, the appellant has preferred the present appeal.
2. Short facts of the case are that on 31-5-1991 one Ravikumar Saigal approached Shahibag Police Station with an information that he was serving with the military force and he was directed by his JCO Subedar Ramsingh to intimate the Police that one Chunilal Mathurdas Gadhia who is serving in army has intimated that two persons are present in Yadunath Family Quarter No. 550/2 and they are, possibly possessing opium, charas and revolver. He gave this information in writing and on the basis of that information, the P.S.I, who was also in charge of the Police Inspector of Shahibag Police Station informed his official superior officer, summoned two panch witnesses and after his immediate superior-Superintendent of Police came to the police station and proceeded for conducting the raid at Yadunath Family Quarter No. 550/2 which was allotted to Gadhia Chunilal Mathurdas. He also directed another police official to summon a goldsmith to facilitate the weighing of the contraband seized, if it is found. He further directed to summon a personnel from Forensic Science Laboratory (F.S.L.) for preliminary examination of the material that may be seized to ascertain the possibility of that material being a narcotic drug or a psychotropic substance. When they reached the quarters, they found that the person who was allotted the said quarter, viz., Gadhia Chunilal Mathurdas was present. Some of the army persons were also present. After the team reached there, Gadhia Chunilal Mathurdas shouted the name of the present appellant asking him to open the door; whereupon he opened the door, the team entered the house, searched his person and found about 5 gms. of charas from his personal possession, i.e. out of the pocket of his shirt. Two keys were found from the pocket of his pant. The keys were that of the suit case which was lying near the cot and upon opening of the suit case, contraband charas weighing about 2130 gms. was found. The charas that was found was in the nature of sticks 565 in number. One more person was also found sleeping in the house. The person who was summoned from the Forensic Science Labouratory (F.S.L.) Mr. Devendra Dave, after conducting preliminary examination opined that the material seized both from the person of the appellant as well as from the suit case primarily appeared to be contraband charas; whereupon the contraband was seized after following the procedure of sampling and sealing. The muddamal was then sent to the police station which was kept intact by the crime writer head constable of Shahibag Police Station and was ultimately sent to F.S.L., Ahmedabad through Kanji Raiji writer to the P.S.I.. The F.S.L. report ultimately revealed that the material seized from the pocket of the shirt of the appellant and the suit case was contraband charas. The police ultimately, therefore, charge-sheeted the appellant, the person who was sleeping in the house at the time when the raid was conducted and Gadhia Chunilal Mathurdas who had informed his superiors about the possibility of the appellant and the other person possessing opium, charas, ganja etc.
3. When the matter came up for trial before the Additional Sessions Judge, Ahmedabad (Rural), the accused person pleaded not guilty and expressed their desire to face the trial. The trial was, therefore, proceeded with and the learned Additional Sessions Judge considering the evidence adduced by the prosecution came to the conclusion that the prosecution had successfully proved the case against the appellant who was accused No. 2 before the learned Additional Sessions Judge and therefore, convicted him for the offences under Sections 22 and 23 N.D.P.S., Act and imposed' sentences as narrated above. The learned Additional Sessions Judge also came to the conclusion that the prosecution had failed to establish the guilt against accused Nos. 1 and 3 therein and ultimately acquitted them. It is this judgment and Order of the learned Additional Sessions Judge dated 15-5-1993 passed in Sessions Case No. 1523 of 1991 which is the subject-matter of challenge.
4. Mr. Raval learned Advocate for the appellant submitted that the case against the appellant suffers from many infirmities. The learned Additional Sessions Judge has overlooked and neglected these infirmities in the prosecution case and has convicted the appellant. It is a clear error of law. Mr. Raval submitted that the investigating agency has failed to meet with the mandatory requirements of Section 42(2) of the N.D.P.S. Act and this being fatal to the prosecution as per the settled proposition of law by various decisions of the Apex Court, learned Additional Sessions Judge ought to have acquitted the appellant.
Mr. Raval submitted that when the raid was committed, the search conducted and the seizure made, competent gazetted officer was not present and despite that, requirements of Section 50 of the N.D.P.S. Act have not been followed. This patent lacuna in the prosecution case has been ignored by the learned Additional Sessions Judge.
Another contention raised by Mr. Raval is that recovery of contraband is doubtful. To substantiate his argument, Mr, Raval submitted that the prosecution has failed to bring on record the seizure memo, the muddamal pavati, the receipt by the F.S.L. and the panchnama. They contradict each other as to the proof of articles seized and therefore, the seizure slips are under a cloud of doubt.
It is contended further by Mr. Raval that the contraband which purports to have been seized between 14-10 hours to 18-30 hours on 31-5-1991 was in fact traced and seized at about 10-00 hours to 11-00 hours on that day and if that be so the entire prosecution case and its investigation becomes doubtful.
5. Highlighting the F.S.L. report in comparison to the panchnama and the evidence of the witnesses, Mr. Raval submitted that the F.S.L. report speaks of also having received powder form of contraband; whereas the panchnama and the evidence of other witness as to the seizure and sealing does not speak of any powdered material seized, sealed or sent to the F.S.L. and therefore, also the prosecution case becomes doubtful. Last but not the least, Mr. Raval submitted that the conduct of original accused No. 1 who has been acquitted is suspicious. Not only that the evidence led by the original accused No. 1 indicates that he was in the hospital on 31-5-1991 as an indoor patient and was discharged only on that day at about 18-00 hours. Against this, the prosecution evidence is that when the raiding party reached the Family Quarter No. 550/2, accused No. 1 was present and the door was opened by accused No. 2 at the instance of accused No. 1. Not only that but it appears that he was also searched physically. These circumstances demolish the veracity value of the prosecution case. Mr. Raval, therefore, urged that the appeal may be allowed, the judgment and Order impugned in the appeal may be set aside and the appellant may be acquitted.
Mr. Raval by way of alternative submission submitted that in the event this Court is not inclined to allow this appeal on merits, mercy may be shown towards the appellant and his sentence both substantive and in default may be reduced to the minimum prescribed under the law.
6. Mr. A.J. Desai learned A.P.P. appearing for the respondent State submitted that the judgment challenged in this appeal hardly calls for any interference by this Court. Mr. Desai has drawn our attention to the provisions of Sections 34 and 54 of the N.D.P.S. Act and submitted that when contraband is found to be in conscious possession of the appellant, presumption under Sections 35 and 54 would operate against him. He submitted that a large quantity of nearly 2,130 gms. of charas is seized from the appellant. The appellant is admittedly in the employment of military force and when a man who is supposed to be protector of the society is acting against the interest of the society, strict view thereof may be taken. Mr. Desai submitted that in the instant case, Superintendent of Police was present from the moment the raiding party started for conducting the raid from the police station. The person who received the information immediately passed over the information to the Superintendent of Police and in response thereto, the Superintendent of Police has approached the police station within minutes thereof and therefore, so far as the entry, search and seizure is concerned, it is conducted by a team of police headed by the officer of the rank of Superintendent of Police. The result would be that, Section 42(2) of the N.D.P.S. Act would not be attracted. In fact the Superintendent of Police is an officer falling under the category of Section 41(2) of the N.D.P.S. Act. As regards the conflicting timing aspect as emerging from the deposition of witness Capt. Yashpal Singh Shivlal Exh. 44 and the Panchnama, Mr. Desai submitted that witness Yashpal Singh in his cross-examination has admitted that he is not sure about the timing aspect but the contraband was seized after a lapse of about an hour after he reached the spot and that he was at the spot upto 4-30 p.m. to 5-00 p.m. on that day. Mr. Desai submitted that this slip on the part of this witness does not affect the basic texture of the prosecution case and therefore, need not be seriously viewed. Mr. Desai submitted that the learned Additional Sessions Judge has taken into consideration all these aspects while recording the judgment and Order impugned in the appeal. He, therefore, urged that the appeal may be dismissed.
We have been taken through the records and proceedings of the case and are taken, very closely, through the relevant portions of the evidence of both sides. We have also closely scrutinised the impugned judgment and Order.
7. The case before us has a peculiar fact. The appellant-an employee of the military force of the country is found to have been involved in narcotic drug peddling and is convicted therefor. It is indeed a shocking situation where a protector has turned a perpetrator. The arguments advanced on behalf of the appellant have been given very serious and due consideration by us and we find that there appears not any substance in any of the arguments advanced on behalf of the appellant on account of the reasons dealt with by us in the paragraphs to follow.
8. As regards the non-compliance of Section 42(2) of the N.D.P.S. Act, our attention is drawn to the evidence of P.S.I. Shri Shukla Exh. 46. He says that on 31-5-1991 he was in charge of P.I. of Shahibag Police Station, as P.I. was on leave. At about 13-55 hours Ravi Saigal approached him and gave him the information whereupon he recorded said information and obtained the signature of Ravi Saigal thereon. After making necessary entry about the same in the station diary, he immediately intimated his superior officer. After summoning two panch witnesses and after arrival of Superintendent of Police, they left for commission of raid. This aspect had been corroborated by various pieces of evidence including the panchnama wherein the Superintendent of Police has put his signature as panchnama having been drawn before him. The result is that the entire procedure is conducted in the presence of Superintendent of Police. It is true that P.S.I. Shri Shukla has admitted in his deposition during cross-examination that he had not informed his superior officer in writing. However, if the provisions of Section 42(1) of the N.D.P.S. Act are considered, then it would be quite clear that requirement of Section 42(2) would be necessary to be met with only where, the officer making the entry, search, seizure or arrest is an officer falling under Section 42(1) of N.D.P.S. Act. But where an officer falling under the category of Section 41(2) of the N.D.P.S. Act carries out such entry, search, seizure or arrest, requirement of Section 42(2) would not be necessary to be met with. In the instant case, the entire procedure of entry, search, seizure and arrest is carried in the presence of Superintendent of Police who is himself a gazetted officer and would, therefore, fall under the category of Section 41(2) of the N.D.P.S. Act. The purpose behind the requirement of informing immediate superior as provided under Section 42(1) of the Act is to protect the interest of a citizen and to eliminate the possibility of any manipulation or misuse of power. Thus, the spirit of letter of law is virtually fulfilled in the instant case when the P.S.I, immediately informed his superior though orally and this superior officer immediately responded to the information, rushed to the police station and carried out the entire process of entry, search, seizure and arrest. The result is that legally requirement of Section 42(2) is not required to be fulfilled and factually and virtually and in spirit and letter of law, the requirement was fulfilled. The argument, therefore, that the entire trial would stand vitiated for want of compliance of Section 42(2) of the N.D.P.S. Act, therefore, cannot be accepted.
9. Second argument was that the presence of Superintendent of Police is doubtful. But that possibility stands Ruled out from the deposition of P.S.I. Shri Shukla Exh. 46. It is clear from the deposition of Shukla and his complaint that thev had left the police station along with Superintendent of Police. This aspect gets corroborated by the fact that the panchnama is drawn before the Superintendent of Police and the Superintendent of Police has signed the same as having been drawn before him. As a result, the requirement of Section 50 would also not require any specific compliance as has been held in the case of Dhanpalsingh Barunsingh Thakur v. State of Gujarat , followed by the Division Bench decision of this very High Court (Coram : J.N. Bhatt & A.K. Trivedi, JJ.) in Criminal Appeal No. 742 of 1993 decided on 8-10-1998 (reported in Mafaji Movataji Thakor v. State of Gujarat 1999 (2) GCD 991) to which one of us (J.N. Bhatt, J.) was a party and therefore, that argument of the appellant also does not hold ground.
10. It was further contended that the recovery of contraband is under a cloud of doubt. In fact the bone of contention was that the entire procedure of drawing of panchnama including the seizure and sealing is under a cloud of doubt. It was contended that according to Capt. Yashpal Exh. 44 he reached the venue at about 10-30 a.m. to 11-00 a.m. on the date of the incident and at that time people had gathered and the police personnel were also present. Against this, the panchnama indicate the timing between 14-10 to 18-30 hours and. therefore, it was argued that the entire procedure is doubtful. However, a close scrutiny of the deposition of this very witness indicates that during cross-examination he stated that he is not sure about the timings. He says that he was at the venue between 4-30 p.m. to 5-00 p.m. He also admits that he is not sure about the timing aspect but the contraband was traced after about an hour of his reaching the venue. It is therefore, certain that this witness is not sure about the timing aspect. If other pieces of evidence are considered, it is amply clear from the information given by Ravikumar at Exh. 40 that he was directed by Subedar Ramsingh to inform the police at about 1-30 p.m., whereupon, he went to the police station and gave the information. Same thing is reiterated by him in his deposition. The deposition of P.S.I. Shri Shukla indicates that Ravi Saigal had approached him at 13-55 hours and therefore, taking an overall view of the evidence, there remains no doubt about the timing aspect particularly when Capt. Yashpal is not certain about the timing aspect.
11. It is true that the F.S.L. report indicates that the packet containing 565 sticks of contraband also carried some powder in it which was also found to be charas. It is also true that the panchnama and the witnesses to the panchnama do not mention anything about the presence of charas in powder form or the seizure of any contraband in powder form. But the important aspect that required to be considered is that the muddamal was seized and sealed on 31-5-1991. Thereafter, it was sent to the police station, kept in the lock and on the next day it was sent to the F.S.L. i.e., 1-6-1991. The contraband was analysed by the F.S.L. on 18-7-1991. During this time, the muddamal may have been handled and shifted for a number of times and obviously the sticks may be have shedded some power. It is nobody's case that the muddamal was not properly sealed. It is also nobody's case that there was any tampering with the sealing aspect. The prosecution has examined the witnesses who had handled the muddamal till it reached the F.S.L. and that being so there is no question of doubting the prosecution case only because some powder is found from the sealed packet and the argument, therefore, cannot be accepted.
12. As regards non-production of seizure memo it was only a procedural lapse and it cannot affect the substratum of the prosecution case. We have closely scrutinised the panchnama and the F.S.L. report and we do not find any discrepancy in the number of parcel that are seized at the time of drawing the panchnama and they reached the F.S.L. and therefore, that ground also cannot be accepted.
13. The last but not the least, is the argument that the conduct of the original accused No. 1 Gadhia Chunilal Mathurdas is doubtful as he was in the hospital as an indoor patient on 31-5-1991 till 6-00 p.m. and therefore, the benefit of doubt should go to the appellant. In this regard it may be noted that doubtful or suspicious conduct of a co-accused cannot nullify the effect of a sound case against another co-accused. In fact what is argued by the appellant had also appealed the investigating agency and the investigating agency did charge-sheet accused No. 1 and he had to face trial. He has been acquitted by a competent Court and that acquittal has not been challenged by an acquittal appeal and therefore, that cannot help the appellant. As regards the presence of original accused No. 1 in the hospital and his plea of alibi, it may be stated that it is not a relevant factor as stated above so far as the present appellant is concerned, Still however, a close scrutiny of the evidence indicates that the witness through whom the presence of accused No. 1 was tried to be established by the defence had no personal knowledge about the physical presence of accused No. 1 in the hospital as an indoor patient till 6-00 p.m. on 31-5-1991 and by virtue of that aspect only, the prosecution case cannot be considered as doubtful as prosecution speaks of the presence of original accused No. 1, at the venue at the relevant time since the prosecution has established that aspect by cogent and trustworthy evidence.
14. The outcome of the above discussion is that we find no merit in the appeal and it must, therefore, embrace dismissal.
15. As regards the alternative argument advanced by Mr. Raval on behalf of the appellant, we find no special reason for reducing the sentence. In our opinion, the learned Additional Sessions Judge has justly and appropriately exercised the discretion in the light of the fact of the present case and therefore, we do not deem it proper to interfere on the sentence aspect.
16. Mr. Raval has placed reliance on an unreported decision of the Division Bench of this Court to indicate that requirements of Section 42(2) of the N.D.P.S. Act are mandatory and non-compliance thereof would vitiate the trial. We are in full agreement with the ratio laid down in the said decision. But as discussed above, in the facts of the present case, since the entire procedure of search, seizure and arrest is carried out by an officer falling under the category of Section 41 (2) of the N.D.P.S. Act, the question of meeting with the requirement of Section 42(2) of the N.D.P.S. Act does not survive and said decision therefore, will not help the appellant.
17. Before parting, we must place on record the valuable assistance that Mr. Raval has rendered to this Court while working for the appellant in the legal aid.
18. The appeal, therefore, stands dismissed.