Gujarat High Court
The State Of Gujarat vs Ismail @ Lilu Amir Shaikh & ... on 25 March, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1077/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1077 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
ISMAIL @ LILU AMIR SHAIKH & 3....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP, for the Appellant(s)
MR SK BUKHARI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 25/03/2015
ORAL JUDGMENT
[1] The present acquittal Appeal has been filed by the appellant- original complainant, State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 12.10.2004 rendered by the learned Special Judge, Bharuch, Fast Track Court Page 1 of 8 R/CR.A/1077/2005 JUDGMENT No.6, Bharuch, in Special N.D.P.S. Case No.14 of 1998. The said case was registered against the present respondentsoriginal accused for the offence under Sections20(b) and 29 of the Narcotic Drugs and Psychotropic Substance Act.
[2] According to the prosecution case, on 20.08.1998, when Mr.M.D. Puvar was serving as PSI at Jambusar Police Station, he received one information from his private informant that resident of Ajmeri Nagri namely Ismail @ Lilu Amir Shaikh was coming with particular quantity of Charas at Chadpir Dargah. So, he called staff members with two panchas and the said information was reduced in writing in station diary in secret register. The said information was sent to the higher officer S.P. as well as Dy.S.P. and Circle Police Inspector of Jambusar Police Station. Then, contents of the information was disclosed to panchas and members of raiding party and preliminary panchnama was drawn. In private vehicle, they went to the place of raid, where, at round about 19:30, one person came from Dabha Cross Road and informant identified the said person as Ismail @ Lilu Shaikh and he went away from the place. When he came near, he was identified and he was interrogated regarding his name and address. Then, all the members of raiding party with panchas introduced with said person. Thereafter, the information was disclosed to him and he was aware regarding his right whether he wanted to search before the Magistrate or before the Gazetted Officer, to which he refused. Then, search was made out. During the search, from the right pocket of the pent, black substance was found in plastic bag. Then, Thereafter, one person was called for measurement of the said contraband article. The Page 2 of 8 R/CR.A/1077/2005 JUDGMENT weight of the said contraband article was 22 gram 650 milligram. Then, samples of 55 grams was taken and muddamal was seized and mark was given. Then, second part of the panchnama was drawn. The complainant filed the complaint against the respondent No.1accused. Then the sealed muddamal was sent to the FLS for scientific analysis. Thereafter, the investigation was carried out and statements of the witnesses were recorded. During the investigation, other respondentsaccused were also arrested. After receiving the report of FSL, chargesheet was filed against the respondentsaccused for the offence punishable under Sections 20(b) and 29 of the NDPS Act before the trial Court. As the said offences were exclusively triable by the Sessions Court, learned trial Court committed the case to the Court of learned learned Special Judge, Bharuch, Fat Track Court No.6, Bharuch, which was thereafter numbered as Special N.D.P.S. Case No.14 of 1998.
[3] On the basis of above allegations, charge was framed vide Exh.14 and readover and explained to the accused for the offence punishable under Sections20(b) and 29 of the Narcotic Drugs and Psychotropic Substance Act. The accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined
seven oral evidences :
Sr. Exh Name of Witness
No.
1 24 Punjabhai Maganbhai Patel
2 30 Haribhai Mohanbhai Patel
3 31 Kundanmal Babubhai
Page 3 of 8
R/CR.A/1077/2005 JUDGMENT
4 33 Abdulbhai Valibhai Patel
5 36 Mohanbhai Mithabhai
6 46 Dipakbhai Bansilal
7 47 Kanubhai Manubhai
8 49 Jayshankar Ramjibhai Chauhan
9 51 Madansinh Duleshinh Puvar
[5] In support of the prosecution case, the prosecution has
produced several documentary evidences like complaint at Exh.
25, panchnama at Exh.25,37,38, 39 and 40, report of FSL at Exh.40, secret entry No.2/98 at Exh.52, station diary No.17/98 at Exh.56, muddamal register No.113/98 at Exh.50, resolution under Section42 at Exh.63 and 64, ravangi note at Exh.61, letter to DSP, Dy.S.P. and Circle Inspector regarding information at Exh.53, 54 and 55, copy of notes of search of accused at Exh.48, letter regarding muddamal recovered from the accused at Exh.60 and resolution of Section42 at Exh.57.
[6] Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused persons admitted that they were innocent and false complaint has been filed against them. Further, they denied the case of the prosecution and submitted that a false case is filed against them.
[7] Then, arguments of both the parties were heard. Learned trial Judge has observed that prosecution failed to prove its case beyond reasonable doubt. From the evidence of the complainant, witnesses Page 4 of 8 R/CR.A/1077/2005 JUDGMENT and panchas, it was proved before learned Judge that the prosecution did not follow the mandatory provisions of NDPS Act. After considering the defence version of the respondentsaccused, the learned Judge acquitted the respondentsaccused from the alleged charge levelled against them.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 12.10.2004 rendered by the learned Special Judge, Bharuch, Fat Track Court No.6, Bharuch, in Special N.D.P.S. Case No.14 of 1998, the appellant-State has preferred the present appeal before this Court.
[9] Heard Ms. Hansa Punani, learned additional Public Prosecutor the appellant-State and Mr. S.K.Bulhari, learned counsel for the respondent Nos.1 to 3accused.
[10] Ms. Hansa Punani, learned additional Public Prosecutor the appellant-State contended that order of acquittal, passed by the learned trial Judge is illegal, erroneous and contrary to law. She read the charge as well as evidence of the witnesses and contended that prosecution has produced 19 documents on record and all are proved through oral version of the witnesses. She further contended that Trapping Officer has followed the mandatory provision of the NDPS Act, even though learned trial Judge acquitted the respondentsaccused by wrongly observing that witnesses have deposed contrary to each other and thereby, the prosecution could not prove its case beyond reasonable doubt. She then submitted that learned trial Judge committed a grave error and wrongly acquitted the respondentsaccused in such type of serious offence. Lastly, she prayed to set aside the judgment and Page 5 of 8 R/CR.A/1077/2005 JUDGMENT order of the learned trial Judge and allow the appeal.
[11] Mr.S.K.Bukhari, learned counsel for the respondent Nos.1 to 3accused read the contents of the complaint and panchnama so also the evidence of the Trapping Officer. He vehemently argued that evidence of the independent witnesses is not trustworthy, acceptable and reliable. He then argued that from version of all the witnesses, the prosecution could not prove that the contraband article Charas was recovered from the possession of respondent No.1accused. He contended that mandatory provision of law was not followed. He contended that it is the duty of the prosecution to establish that under the guise of conspiracy made by all the respondentsaccused, muddamal article Charas was recovered from the possession of respondent No.1accused. Mr. Bukhari, contended that learned trial Judge rightly observed that case of the prosecution is covered under the cloud of doubt and facts of the prosecution case as narrated by the witnesses, also create some doubt. The learned trial Judge has rightly acquitted the respondentsaccused from the said alleged charge and therefore, he prayed to dismiss the appeal.
[12] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witnessescomplainant and also perused the charge framed against the respondentsaccused. I have also considered the submissions made by learned advocates for the parties.
[13] First of all, evidence of material witness Trapping Officer Mr. M.D.Puwar, examined at Exh.51, create sufficient doubt and learned trial Judge rightly considered that he gave contradictory Page 6 of 8 R/CR.A/1077/2005 JUDGMENT version in his chief examination and in crossexamination. Panchas also did not support the case of the prosecution. I have minutely perused the relevant observation of the learned trial Judge observed at page Nos.15 to 17 of the judgment. I have found that the prosecution could not establish its case beyond the cloud of the doubt. Today, Ms. Hansa Punani, learned Additional Public Prosecutor, could not convince the Court that under which circumstances and for what reason, learned trial Judge made wrong observation and acquitted the respondentsaccused from the alleged charge levelled against them. I In view of the above observation, I am of the opinion that learned trial Judge rightly considered the defence version of the respondentsaccused. I am in complete agreement with the judgment and order of the learned trial Judge. There in no substance in the appeal and the arguments made by the learned Additional Public Prosecutor. Though learned Additional Public Prosecutor has tried to establish her case, but the Court has not found any sufficient evidence to consider and entertain this appeal.
[14] In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse.Page 7 of 8
R/CR.A/1077/2005 JUDGMENT Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
[15] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[16] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 12.10.2004 rendered by the learned Special Judge, Bharuch, Fat Track Court No.6, Bharuch, in Special N.D.P.S. Case No.14 of 1998, acquitting the respondents- accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth Page 8 of 8