Gujarat High Court
Munnalal Mathura Prasad And Anr. vs State Of Gujarat on 17 April, 1995
Equivalent citations: (1996)1GLR162
JUDGMENT B.C. Patel, J.
1. Criminal Appeal No. 677 of 1988 is preferred by original accused No. 1 whereas Criminal Appeal No. 674 of 1988 is preferred by original accused Nos. 2 and 3 against the judgment and order passed in Sessions Case No. 269 of 1987 by learned Additional City Sessions Judge, 3rd Court, Ahmedabad on 19-7-1988, convicting the appellants-accused under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentencing each of them to rigorous imprisonment for 10 years and fine of Rs. 1 lakh each, in default of payment of fine, one year's rigorous imprisonment.
Both the appeals are arising out of the same judgment, and are, therefore, disposed of by this common judgment.
2. Concisely stated, the prosecution case as it emerges from the records, is as under:
2.1 Arvindsing Jaswantsing Chavda PW. 4, a police constable of Gomtipur Police Station, through an informant, came to know that one Radhechandra Jogeshwar, accused No. 1, residing at bungalow No. 9 of Krishnanagar Society has ordered for charas and some people have come with charas and all of them are at bunglow No. 9 Krishnanagar Society. This information was received on 17-11-1987 at 11-00 p.m. which was conveyed to his higher officers, i.e., Police Sub-Inspector Jadeja PW. 5, Police Inspector Chavda and Police Superintendent Jani (Inspector and Superintendent are not examined by the prosecution). Two panchas were called and they were explained about the raid to be carried out. The police party reached the place in two different vehicles. PSI Jadeja went to bungalow No. 9 and on knocking at the door, one person opened the door from inside and that person stopped PSI Jadeja from entering into the house. Three persons tried to run away by the rear door of the kitchen. However, two of them were caught by police personnel. In the presence of panchas, the premises was searched and from a shelf in the bathroom, two bags, one of white colour and the other of green colour, were found by constable Arvindsing and on searching the bags, black coloured lumps were recovered from the bags, which smelt like charas. The white bag contained 4 kg. and 800 grams charas while the green coloured bag contained 900 grams. About 50 grams from each bag were taken as samples and the bags and the samples were separately sealed, putting the slips of the panchas and affixing seals. Radhechandra, accused No. 1 was asked to produce some evidence as to the ownership of the bungalow No. 9 and he produced an electric bill in his name. The same was initialled by the panchas and the PSI and that was also seized. Muddamal was seized. F.I.R. was registered against the four accused. The premises where accused No. 2 and 3 were staying were also searched but nothing incriminating was found. Accused No. 4 was arrested on 18th October 1987 at about 10-00 a.m. In the opinion of Forensic Science Laboratory, the muddamal samples were of charas. On completion of investigation, charge-sheet was filed against the accused persons on 30-11-1987 in the Court of Chief Metropolitan Magistrate, Ahmedabad, who committed the accused to the Court of Session for trial. Charge, vide Exh. 3, was framed against all the accused, to which all the accused pleaded not guilty.
3. To prove the. case against the accused persons, prosecution examined five witnesses including Chemical Analyser. Accused No. 1 examined in all 15 witnesses in his defence.
4. On appreciation of the evidence and the statements of the accused as well as the submissions made by learned Advocates, the trial Court acquitted original accused No. 4 but convicted and sentenced original accused No 1,2 and 3 as referred to hereinabove.
5. Mr. Shah, Learned Counsel for the accused No. 1 submitted that provisions of Section 42 read with Section 50 of the Act have not been complied with and hence the conviction is vitiated; that accused No. 1 was not in possession of the premises in question; that the accused No. 1 was not in conscious possession of the muddamal articles and therefore, at any rate, the accused No. 1 cannot be said to be in possession of the muddamal articles; that the evidence of the Chemical Analyser is not sufficient to establish that the articles examined by him were charas as defined under the Act; that the prosecution has miserably failed to prove the identify of the sample as according to him, sealing of the sample is not proved and tampering cannot be ruled out.
6. Learned Advocate Mr. Zhala for accused Nos. 2 and 3 submitted that accused Nos. 2 and 3 are not residents of Ahmedabad and they belong to Jashwantnagar, U.P.; that on the date of the raid, these two persons were residing at a different place where also a raid was carried out soon after the procedure of seizure was completed in this case but nothing was found; that these two accused have nothing to do with the ownership of the bungalow No. 9 where the raid has been carried out or the articles in question seized by the police; that accused Nos. 2 and 3 were not arrested from the compound raided.
7. According to the prosecution, four persons were present when the raid was carried out. These persons started running on seeing the raiding party; one jumped over the wall and could not be arrested on the spot but was arrested subsequently. Therefore, according to Mr. Jhala, the muddamal article might have been brought by the accused No. 4 and that is why he ran away from the scene and for his act, others cannot be held responsible.
8. Though the Learned Counsels have argued on all the points, we intend to decide the appeal only on a crucial point, i.e., about conscious possession.
9. It appears that the prosecution has placed reliance on an electric bill which was produced by accused No. 1. It seems that there is no investigation with regard to possession of premises. The police officer was satisfied on the basis of this electric bill to come to a positive conclusion that Radhechandra Jogeshwar was in exclusive possession of the premises. If the investigation would have carried out to its logical end, probably the matter would have been different. Investigating officer in his cross-examination has admitted that he has not recorded the statement of any person residing or occupying the adjoining bungalow to bungalow No. 9. He has not inquired as to from where accused No. 1 is getting his ration supplies. He has also not inquired as to whether accused No. 1 Radhechandra is concerned or not with the said bungalow No. 9. A specific case has been put to the investigating officer that accused No. 1 is not residing in the said premises. When a positive question was put to him, he has stated that he does not know whether Radhechandra accused No. 1 is residing and carrying on business at Parmanand Chawl. In the cross-examination, it was suggested to the PSI that accused No. 1 showed documentary evidence that he is residing at Parmanand Chawl and that he inquired about it, to which he has denied. He has stated that about ownership or possession, he made inquiries in the Municipality. However, answer to further question reveals that he has not at all inquired in the Municipal Corporation. It was suggested to him that during the inquiry it was revealed that the tax bills are paid by Ramakant to which he has denied. Thereafter, he has stated that he has not inquired as to who is paying the tax. If at all he would have made inquiries in the Municipality, he would have come to know as to who is the occupier of bungalow No. 9 where the raid was carried out.
10. On behalf of the accused No. 1, witnesses have been examined to prove that the accused No. 1 is not residing at the place where the raid was carried out but he is residing at Parmanand Chawl and is carrying on business there.
xxx xxx xxx
26. From the depositions of the witnesses narrated in short above makes it clear that the accused No. 1 Radhechandra was residing at Parmanand Chawl. One might be keeping more than one premises. But what is the evidence led by the prosecution to show that in bungalow No. 9 situated at Krishnanagar Society accused No. 1 was residing? The defence witnesses have clearly stated on oath that the accused No. 1 was residing at Parmanand Chawl.
27. In view of the defence evidence, it is necessary to consider the cross-examination of the police officer and the zeal of the investigating officer. As a matter of fact, in a criminal case, it becomes the bounden duty of the prosecution to lead cogent and convincing evidence to establish that the premises which is raided is occupied by accused No. 1 or the premises is under control/custody of accused No. 1 when possession is to be proved. Mere production of an electric bill would not indicate that the accused No. 1 is the occupier of the premises. The investigating officer has not even bothered to record the statement of persons residing in the adjoining bungalows in the society to establish that accused No. 1 is residing in bunglow No. 9 of Krishnanagar Society. When accused has led sufficient evidence to show that he is residing at a different address, i.e., at Parmanand Chawl and the prosecution has failed to prove by leading cogent, convincing and satisfactory evidence that the accused No. 1 was occupier of the premises raided, defence version is to be accepted. The letters produced are in fact written before the date of occurrence. Other independent evidence such as gas bills, demand of telephone bill, telegram, etc., clearly show that the accused No. 1 is residing at a different address. There is also independent evidence of a practising lawyer and medical practitioner. On the other hand, cross-examination clearly shows that prosecution evidence is not acceptable. On appreciation of the defence version discussed above, it is not possible to accept the contention of the prosecution that the premises where the raid was carried out is in exclusive occupation or occupation of the accused No. 1.
28. Prosecution has examined Sabbirahmed PW. 2 Exh. 24. This witness has stated that on 1-10-1987 at about 12-00 midnight, he was called by the police on the ground that he has to render his services as a panch in a raid to be carried out for charas. He was told that they have to go to one Society near Milan Society. Another man was also called. The raiding party proceeded to Krishnanagar Society which stopped at bungalow No. 9. Door of that bungalow was knocked as a result of which one person opened the door and immediately the police officer entered the house with panchas. Police arrested the person who opened the door and other two persons from the bungalow. Police inquired about charas. The first room was searched and nothing was found. The second room and the kitchen were also searched but nothing was found. From the bathroom, on a shelf, bags were found wherein lumps were found having black colour. Samples were collected from both the bags and the same were sealed after putting their signatures. Accused No. 1 produced an electric bill which was signed by the panchas. Panchnama was completed there and the same was signed. The polythene bag and the bag wherefrom the articles were recovered have been identified by this witness. In paragraph 4 of the deposition, a specific case has been put to this witness that he is a professional panch and he has acted as a panch in atleast 3 cases. It was also suggested to him that he is helping the police and is signing the documents wherever the police called upon him to sign the same. In the cross-examination, he has stated that the muddamal was brought in the room and at that time, only 3 persons were there. Even if the evidence of this panch is accepted, it suggests that three persons, accused No. 1, 2 and 3, were in the house and from the bathroom two articles containing prohibited charas came to be recovered. It is suggested by the prosecution that as there was information in advance that the accused No. 1 is dealing in charas and two persons have come and the premises have in fact been raided and three persons have been found from the premises, the version of the prosecution should not be doubted.
29. Arvindsing PW. 4 Exh. 35 is the police constable who received the information about the contraband article. He has stated that he has received information that persons from outside are coming with some quantity of charas. The names of the persons who were to come with charas were not declared. When he received this information, he was in the police station and he noted the information in his diary. However, the diary is not produced before the Court. This version is contrary to what he has stated in the chief examination. In the chief examination, he has stated that he has received information that Radhechandra residing in bungalow No. 9 of Krishnanagar Society near Milan Cinema has ordered for charas from outside and some persons have come to him with charas. Thus, in the chief examination, the case is that accused No. 1 is the responsible person for ordering charas. This information has not been recorded anywhere. Not only that, he has posed as a witness to the search but in his statement he has not stated that he went with the members of the raiding party. Even the evidence of this witness disclosed that nothing was found from the room where the persons were sitting, i.e., in the drawing room. Even from the second room and from the kitchen, nothing was recovered but this witness, i.e., Arvind searched the bathroom and from one shelf in the bathroom one hand bag and one container wrapped with polythene bags were recovered.
30. Dilipsing Baluba Jadeja PW. 5 who was at the relevant time PSI at Gomtipur Police Station has stated in his deposition that on 18-10-1987 at 00-00 hours, police constable Arvindsing conveyed information that Radhechandra residing at 9, Krishnanagar Society has called for charas and some persons have come from outside with charas. Reading his evidence, it is clear that nothing was recovered from the drawing room or from the bed room or kitchen but police constable Arvindsing as well as this witness searched the bathroom and on a shelf in the bathroom one white coloured and other green coloured bags were found, which contained charas. Radhechandra produced an electric bill in his name. He has admitted that the procedure laid down under Section 165 of the Criminal Procedure Code was not followed. However, the said procedure was followed in other case. He has admitted that the information which he received has not been recorded by him anywhere before the panchnama was prepared. It is his consistent version that from the initial stage, i.e., when the information was conveyed by police constable Arvindsing till the place of recovery, P.I. as well as Superintendent of Police both were present. This is disputed by the defence. There is no independent evidence to show their presence. None of them have entered the witness box. This PSI, as observed by us in the earlier part of this judgment, has not made any efforts to collect evidence to point out that the premises where the raid was carried out was in occupation of accused No. 1 at the relevant time.
31. Thus, from the evidence it is clear that even if the case of the prosecution is accepted that from the bathroom contraband articles were recovered, there is no evidence to show that the premises raided belongs to accused No. 1 and the accused No. 1 is in sole or exclusive occupation of the premises. As regards accused Nos. 2 and 3, except their presence in the house, there is no evidence to connect them with the articles in question.
32. "Possession" must be "conscious" and "exclusive" possession. Section 20 of the Act reads as under:
20. Punishment for contravention in relation to cannabis plant and cannabis Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,-
(a) xxx xxx xxx
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, export inter-State or uses cannabis, shall be punishable -
(i) xxx xxx xxx
(ii) where such contravention relates to cannabis other than ganja with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees.
In the instant case, the word "possesses" is important as the prosecution case is that the muddamal article was found from the bathroom of the house.
33. In the case of Inder Sain v. State of Punjab, the question of presumption to be raised unde Section 10 of the Opium Act as well as the word "possess" came to be considered by the Apex Court. The law regarding "possession" is laid down in that decision in paragraphs 12, 13, 14 and 15 of the judgment. Reading this judgment, learned A.P.P. Mr. Patel submitted that the prosecution would ordinarily fail in such cases if this is accepted. That was exactly argued before the Apex Court and the Apex Court has dealt with it in paragraph 17 of the judgment as under:
...It would, therefore, appear that the prosecution need only show that the accused was directly concerned in dealing with opium. If the prosecution shows that the accused had physical custody of opium, then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article, the presumption under Section 10 would arise. We do not think that the language of Section 10 would warrant the proposition that for the presumption mentioned in the section to arise, it is necessary for the prosecution to establish conscious possession.
Therefore, there must be specific evidence that in any way accused is concerned with the contraband article or has dealt with it in any manner. If the prosecution fails to discharge its burden to this extent, it cannot argue to raise a presumption against the accused. Burden to account will arise only when the accused is in some manner shown to be concerned with the contraband article or has dealt with it. If the prosecution establishes that the accused had some direct relation with the article or has otherwise dealt with it, the presumption may arise. If the prosecution proves physical custody of it with the accused, then certainly the burden of proving that the accused was not knowingly in possession of the contraband article is upon the accused. As observed by the Apex Court (para 20) irrespective of practical difficulty, prosecution has to prove some thing within the exclusive knowledge of the accused.
... The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on the prosecution, the object of the Act would be frustrated.
Therefore, it must be clear that possession is "conscious". Knowledge is an essential ingredient of the offence as the word "possess" connotes.
In the instant case, had the bags been recovered from the physical custody of either of the accused, the position would be different. Prosecution was satisfied with mere finding of contraband articles which were lying on the shelf in a bathroom. Without collecting any evidence connecting the article in question either with the accused No. 1, 2 or 3, charge-sheet is filed. In view of the evidence led by the defence, it is clear that the house where the raid was carried out is not occupied by the accused No. 1 and he is residing at some other place. In the statement recorded under Section 313 of the Criminal Procedure Code, accused No. 1 has clearly stated that at the relevant time, he was at Rakhial and not at the place where the raid was carried out.
34. Mr. Patel, learned A.P.P., relying on the decisions of the Apex Court in the case of Kailash Chandra Sahu v. Republic of India, submitted that the house belongs to the accused No. 1 and, therefore, whatever the articles are recovered from the house, he should be held responsible for the same. In the first place, there is no satisfactory evidence to show that the accused No. 1 was occupying the house. Secondly, in the case before the Apex Court, it was not disputed that the shop belonged to the accused; he was a licensee of the shop and all the goods were belonging to him and were kept by him. The Apex Court held that servant was merely in charge of the shop whenever the appellant was absent. Therefore, on the facts of that case, Court took the view and that cannot be applied to this case.
35. Under the circumstances, it is not possible to accept that the accused No. 1 was the occupier of the house.
36. So far as accused Nos. 2 and 3 are concerned, except their presence in the house, if the prosecution theory is accepted, nothing else is shown to connect them with contraband article. Mr. Patel, learned A.P.P. submitted that the defence version is contradictory and benefit should go to the prosecution. His submission is that the invitation extended by Anita cannot be accepted. Evidence suggests that accused Nos. 2 and 3 had been to the place where the raid was carried out.
37. Accused No. 2 in his statement has stated that he came in search of a job and he was staying with his brother at Amraiwadi. Anita belongs to Jashvantnagar and she is residing at 9, Krishnanagar and he went there to inquire about job possibilities. He seems to be the friend of brother of wife of accused No. 1.
38. Accused No. 3 has similarly stated in his statement.
39. In the absence of any positive evidence connecting the accused with the contraband article, it cannot be said that they were in conscious possession of the contraband article. From the bag or the container, nothing is recovered to indicate that either it belongs to accused No. 2 or 3. Merely because the accused Nos. 2 and 3 are stated to have been present at the house at the relevant time, it cannot be said that they were also in conscious possession of the muddamal article. The law is well settled as discussed above and the prosecution has not led any evidence to connect the accused with the contraband article, and, therefore, it is not possible to accept the prosecution version that all the accused were in conscious possession of the contraband article. That being so, these appeals must be allowed on the ground of failure of the prosecution to prove that the accused were in conscious possession of the contraband muddamal article.
40. It is required to be noted that in a prosecution, it is for the prosecution to prove its case beyond reasonable doubt. This Court, while dealing with a case of misconduct under Section 5(1 )(d) of the Prevention of Corruption Act, in the case of Ravishanker v. Stale of Gujarat, has observed as under in paragraph 12 of the judgment:
As for the falsity of his version in Ex. 26, or even in respect of the one before the Court it cannot help prosecution in any manner. It can succeed or fail on the strength of evidence and it is perfectly open to the accused to say that his defence may be false, but that cannot make the case of prosecution true or rather such as if accepted, would Constitute an offence for which he is sought to be made liable.
The Apex Court in the case of Bhagirath v. State of M. P., held as under in paragraph 11 of the judgment:
It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the Court, on its own make out a new case for the prosecution and convict the accused on that basis.
41. With regard to burden of proof, in a case under the provisions of Prevention of Corruption Act, the Apex Court in the case of R.K. Dey v. State of Orissa, , held that on a consideration of the evidence and the circumstances the accused had been able to prove that the explanation given by him was both probable and reasonable judged by the standard of the preponderance of probabilities. Hence, it was for the prosecution to prove affirmatively...In paragraph 6 of the judgment, the Apex Court held as under:
The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court.
In paragraph 7 of the judgment, the Apex Court held as under:
...The Courts below have failed to consider that once the appellant gives a reasonable and probable explanation, it is for the prosecution to prove affirmative that the explanation is absolutely false. In a criminal trial, it is not at all obligatory on the accused to produce evidence in support of his defence and for the purpose of proving his version, he can rely on the admissions made by the prosecution witnesses or on the documents filed by the prosecution. In these circumstances, the Court has to prove and consider the materials relied upon by the defence instead of raising an adverse inference against the accused, for not producing evidence in support of his defence, because as we have already stated that the prosecution cannot derive any strength or support from the weakness of defence case. The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.
42. In the instant case, the prosecution has miserably failed to prove its case and the defence has produced sufficient evidence. Therefore, if there is some weakness in the defence evidence with regard to the timings or seeing the accused persons, the prosecution cannot say that its case is true.
In view of this finding, we do not deal with the other submissions advanced by the learned Advocates for the accused.
43. In the result, the appeals are allowed. The order of conviction and sentence recorded against the accused-appellants herein by the learned Additional City Sessions Judge, Ahmedabad on 19-7-1988 in Sessions Case No. 269 of 1987 is set aside. The accused are acquitted of the offence for which they were charged in this case. The accused are ordered to be released forthwith if they are not required in any other case.