Gujarat High Court
State Of Gujarat vs Koli Bhagvanbhai Ramjibhai on 24 July, 2023
NEUTRAL CITATION
R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 3107 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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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 NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KOLI BHAGVANBHAI RAMJIBHAI
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Appearance:
MR RONAK RAVAL APP for the Appellant(s) No. 1
MR KARAN VYAS FOR MR UI VYAS(1000) for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 24/07/2023
ORAL JUDGMENT
Being aggrieved and dissatisfied with the judgment and order of acquittal dated 18/09/2008 rendered in Specail NDPS Case No.253 of 1994 by the learned Special Judge (Fast Track Court No.2) Bhavnagar camp at Mahuva acquitting the Page 1 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined respondent-org. Accused from the charge of offence punishable under Sections 8 and 20(a) of the Narcotics Substances and Psychotropic Substances Act (for short the "NDPS Act"), the appellant-State of Gujarat is before this Court by preferring an appeal under Sections 378(1)(3) of the Code of Criminal Procedure (for short the CrPC).
2. The prosecution in nutshell is that complainant - Mr.B G Mori, PSI, Mahuva Police Station gave a complaint on 10/09/1994 that when he along with other police officials were present at Mahua Police Station, he received a secret information that present respondent-accused was illegally cultivating the Ganja in the Vada nearby his house and plant of green Ganja was standing. As the raid was to be carried out, two Panchas viz., Narvinsinh Janubha Chudasma and Rajnikant Dahyalal Bhatt were called and the preliminary Panchnama was drawn and thereafter all the officials were gone to the house of respondent-accused; where he was present and raid was carried out whereupon13 plants of Ganja was found and upon verification, it was found as plants of Ganja total weighing 1.400 Grams valued at Rs.2,800/-. Out of which, 400 Grams were kept in bag and sealed and the Panchnama was drawn in presence of Panchas. It is further the case of prosecution that when respondent-accused was asked for any pass, permit or licence to keep the said narcotics substance, he was not holding any valid pass or permit and was found illegally cultivating the Ganja and thus the accused was found to have committed offence punishable under Sections 8 and 20 of the NDPS Act. Thus, the FIR came to be lodged before the Mahuva Police Station.
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3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Mahuva. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Bhavnagar as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Bhavnagar, learned Special Judge framed charge at Exh.6 against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried
5. In order to bring home charge, the prosecution has examined total four witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 7 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent-accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge Page 3 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.
7. Learned APP Mr.Ronak Raval has submitted that the impugned judgment and order of acquittal is against the settled propositions of law and without considering and appreciating the evidence on record. He has further submitted that the prosecution by leading cogent and reliable evidence has established the case beyond all reasonable doubt and therefore, the impugned judgment and order of acquittal deserves to be quashed and set aside. He has further submitted that the Investigating Officer had carried out the investigation and recorded the statements of the witnesses and has in clear term deposed before the Court that he carried out the raid and in presence of the Panchas, the Panchnama was drawn, articles were recovered and accused was also caught at the place of offences. Not only that, during the course of investigation, the documents pertaining to the ownership of the land were also collected from the office of the Talati-cum-Mantri which would be suggestive of the fact that accused was cultivating the Ganja at the said place.
7.1 Learned APP Mr.Ronak Raval while relying upon the evidence of PW 2 - Narvirsinh Janubhai who was examined as Panch No.2 at Exh.12 has submitted that the said witness has supported the version of the prosecution and all the contents of the Panchnama was proved from the deposition of the said witness and though the said witness was cross-examined at length; nothing adverse has come on record. He has further Page 4 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined submitted that immediately after registration of the FIR, the concerned IO has forwarded the sample of Ganja to the FSL for examination and as per opinion of the FSL, the said sample belong to "cannabis plant as defined in the NDPS Act" and despite the fact that sufficient material and evidence was available on record even though the learned trial Judge has not considered and evaluated the evidence in true spirit and proper perspective and therefore the impugned judgment and order deserves to be quashed and set aside.
8. On the other hand, learned Advocate Mr.Karan Vyas appearing for Mr.U I Vyas, learned Advocate for the respondent- org. Accused has submitted that the impugned judgment and order of acquittal is just and proper and considering all the evidence on record, the learned trial Court has come to the conclusion recording acquittal of the respondent-org. Accused and therefore, no interference would be made at the hands of this Court. He has further submitted that at the time of carrying out the investigation, the IO has to follow certain mandatory norms as prescribed under the NDPS Act; but considering the record, it has clearly come on record that the IO has not followed the mandatory norms as prescribed in the Act. He has further submitted that present respondent-org. Accused has been falsely arraigned as an accused because no such documents pertaining to the ownership of the land where-from the alleged Ganja came to be recovered and therefore, in absence of evidence as to ownership of the land, the criminal liability cannot be fastened upon the respondent-org. Accused. He has further submitted that it is the duty of the concerned IO to inform his higher-ups when the raid was laid successful; but if the evidence of the IO is Page 5 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined examined, in the cross-examination, he has clearly stated that he has not informed his higher-ups about raid being successful and thus considering the lacuna in the investigation and considering the findings of the learned trial Court as recorded in paragraph 24 of the impugned judgment, this Court may not interfere with the findings arrived at by the learned trial Court and dismiss the appeal.
8.1 In support of his submissions, learned Advocate Mr.Karan Vyas has placed reliance on the following case laws and submitted that considering the said case law, the appeal may be dismissed.
1. Alakh Ram vs. State of UP (2004) 1 SCC 766 .
2. A decision rendered in Criminal Appeal No.518 of 1996 on 11/07/2022 by the Hon'ble Division Bench of Hon'ble Gujarat High Court in the case of State of Gujarat vs. Kishorbhai Devjibhai Parmar & 4 Ors .
3. A decision rendered by the Hon'ble Apex Court in Criminal Appeal No.218 of 2017 dated 08/03/2022 in the case of Ramesh vs. the State of Himachal Pradesh .
9. I have heard the learned Advocates appearing for both the sides and examined the records and proceedings.
10. Considering the case of the prosecution, it is an undisputed fact that on receipt of secret information that one particular person is cultivating the Ganja illegally, the raid was arranged by calling two Panchas and preliminary Panchnama was drawn and thereafter the raid was carried out in presence of Page 6 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined the Dy.SP; it is also not disputed that when the raid was carried out the accused was also very well present at the scene of offence and in his presence the raiding party has made the search of the firm having area of one and half Vighas and during the said search, the contraband article Ganja i.e. total 13 plants were found in the form of standing crop and after having examination reached to the preliminary conclusion of it being Ganja-cannabis plants; the samples were taken and sent to FSL; the IO has collected all the documents muddamal articles and recorded the statements of the witnesses and considering the material / compilations jumped to the conclusion that prima facie offence is made out and charge-sheet came to be filed.
11. Now, if cursorily the provisions of the NDPS Act is gone through, the legislature at the time of enactment of the said law has made certain mandatory requirement to be fulfilled while applying the said provisions and in absence of strictest observance thereof, the said provisions cannot be invoked against the innocent persons as the said law is a special law and enacted with an intention to curb the menace of storing, transportation and selling of the narcotics substances; within the territory of the country. It further cast upon the specific duty / liability upon the head of the investigating agency.
12. Now, insofar as the case on hand is concerned, admittedly no basic and requisite mandatory requirements are fulfilled by the concerned IO because at the time of carrying out the raid, the accused persons is required to be asked as to whether he intends to search in presence of the Gazetted Officer or not?
Page 7 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined Neither any member of the raiding party is a Gazetted Officer nor the accused is asked to be examined in presence of the Gazetted Officer and if at all he was asked; no such material has come on record whereby it can be said that mandatory requirements of the NDPS Act is fulfilled. Thus, the IO has clearly violated the provisions of the Act and therefore benefit thereof is required to be extended to the accused.
13. Now, if the paragraph 24 of the impugned judgment i.e. operative part of the judgment is referred to, it clearly appears that the IO has not followed the mandatory provisions as prescribed under the NDPS Act and therefore, such benefit would go to the accused. The infirmities as pointed out in paragraph 24 of the impugned judgment in translated version reads thus:
"1. The IO has not informed the accused about his right of search being carried out of the Vadi which either belong to him or his own ownership in presence of the Gazetted Officer or not ?
2. That, no such entry in the station diary is made by Shri Mori, PSI about receipt of such information while he was sitting in the Police Station and if such entry is made in station diary produced at Exh.27, nothing is found.
3. The documents in relation to Vado where the raid was carried out was produced; but the same does not appear the name of the accused and therefore, does the Page 8 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined said Vado where the raid was carried out is of the ownership of the accused or not; no investigation was done in this regard.
4. No such statements of the persons whose names are found in the revenue record of the ownership of the Vada where the raid was carried out were recorded and neither they came to be arrested.
5. As per Section 57 of the NDPS Act, upon raid being successful, the IO is required to inform his higher-ups; but no such report is made in the case on hand.
6. The person who does the work of weighing is to be called for at the place where the Ganja was found for weighing and to that effect certificate is required to be obtained; neither such procedure is followed nor the statement of the said person is recorded.
7. Statement of the person taking muddamal to the FSL for examination is to be recorded; but no such statement is recorded or procedure is followed by IO.
8. The muddamal is required to be sent to Laboratory immediately within time but no such steps were taken in this case by the IO.
9. That total 13 plants of Ganja came to be recovered and out of which 120 Gram was sent to Laboratory for examination and the IO has deposed in his evidence that Page 9 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined only one plant was sent for examination and no such explanation was given about placement and condition of the rest of the 12 plants.
10. It is found from the evidence of the Panch Witness 2 that the weighing of the muddamal article was done in the Police Station and the Panchnama was also prepared in the Police Station; however the contents of the Panchnama was written by the IO but the signature of the Panchas was obtained subsequently."
14. Now insofar as the reliance placed upon by learned Advocate for the respondent-org. Accused in case of Alakh Ram (Supra) is concerned, it would be beneficial to reproduce the paragraph 5 and 6 of the said decision whereby it has been held that it must be proved that the accused had cultivated the prohibited plant voluntarily and in substantial quantity.
"5. In the instant case, one witness was examined to prove the nature of the offence committed by the accused. It was PWI who accompanied the police officers to the appellant's field. The evidence given by PWI is to the following effect:-
"Alakh Ram is a farmer. I do not know the number of those fields. I do not know the number of that field in which Ganja were sown. 1 do not know as to who had cultivated the plants of Ganja. That field is irrigated and Madho also works in that field. Neither have I seen anyone planting the Ganja plants nor do I know when was it planted."
6. The above evidence is to be appreciated in the background of other evidence on record. Appellant Alakh Ram, his father and brothers owned 70 bighas of land. The prosecution has not produced any document to show that the property from which the Ganja plants were uprooted belonged to Page 10 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined appellant Alakh Ram exclusively. The witnesses who were examined in support of the prosecution also have not given any evidence to show that this property belongs to appellant Alakh Ram. There is no satisfactory evidence either oral or documentary to show that the appellant has a right over the property from which the Ganja plants were recovered. There is no evidence that the appellant cultivated these Ganja plants. Having regard to the extent of the property and the number of plants recovered from that the property, it cannot be said that these plants had been the result of cultivation. They may have been sprouted there by natural process and the appellant or anybody who is the owner of the property must not have been diligent in destroying the plants. There is no evidence to prove that there was cultivation of Ganja plants by the appellant and the Additional Sessions Judge wrongly convicted him as the evidence adduced by the prosecution was not carefully scrutinized by the Court. The High Court committed error in confirming the conviction and sentence of the appellant."
15. Under the circumstances, the learned trial Judge has rightly acquitted the respondent-org. accused for the elaborate reasons stated in the impugned judgment and I also endorse the view/finding of the learned trial Judge leading to the acquittal.
16. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
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17. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
18. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
19. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Page 12 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023 NEUTRAL CITATION R/CR.A/3107/2008 JUDGMENT DATED: 24/07/2023 undefined Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
20. In view of the above and for the reasons stated above, present appeal must fail and is accordingly dismissed. Bail bond shall stand cancelled.
(DIVYESH A. JOSHI,J) sompura Page 13 of 13 Downloaded on : Sat Sep 16 22:35:20 IST 2023