Gujarat High Court
State Of Gujarat vs Gafurkhan @ Jadugar S.Pathan & on 21 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/615/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
CRIMINAL APPEAL No. 615 of 1994
FOR APPROVAL AND SIGNATURE :
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
==============================================================
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 ?
==============================================================
STATE OF GUJARAT....Appellant(s)
Versus
GAFURKHAN @ JADUGAR S.PATHAN &
1....Opponent(s)/Respondent(s)
==============================================================
Appearance :
Ms JIRGA D JHAVERI, ADDL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
Mr MJ BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s)
No. 2
==============================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
21st December 2017
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HC-NIC Page 1 of 31 Created On Fri Dec 22 00:32:46 IST 2017
R/CR.A/615/1994 CAV JUDGMENT
CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)
By means of filing this Appeal under Section 378 of the Code of Criminal Procedure, 1973, the appellant- State of Gujarat has challenged the judgment and order of acquittal dated 13th January 1994 passed by the learned Additional Sessions Judge, Vadodara in NDPS Case No. 30 of 1992 whereby the respondents-accused have been discharged from the offence punishable under Section 20 [b](2) and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ["NDPS Act" for short].
At the outset, it is required to be noted that by virtue of Oral Order dated 21st September 2015, this Appeal stood dismissed as having been abated qua the respondent no. 1-Gaffar Khan alias Jadugar Sattarkhan Pathan, on a statement made at the bar by Shri B.R Parikh, learned advocate appearing on behalf of the said respondent.
Brief facts of the prosecution case are that, when Page 2 of 31 HC-NIC Page 2 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT Shri Pravinchandra Balkrushna Upadhaya was serving as a Police Inspector, D.C.C. Police Station, Vadodara, on 02nd August 1992, he received an information at about 07:30 to 08:00 O'clock in the night that one Jadugar alias Gaffar does the business of selling "Charas" in Nawabvada and the same is kept in the house of one Banubibi. Thereafter, first of all, the information was confirmed and on finding the same to be correct, panchas were called. A lady constable named Bibiben was called by making a phone call to the City Police station, Vadodara. Thereafter, a primary panchnama in that regard was drawn and panchas were asked to search each other physically, wherein nothing objectionable was found. Thereafter, he informed his senior officer and an entry in this regard was made in the station diary. After taking seal, lac, threads and other articles necessary to conduct the raid, he left the premises in his vehicle and one another vehicle was deployed for staff and panchas. On reaching near Ravpura School No-1, he made both the Page 3 of 31 HC-NIC Page 3 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT vehicles to stop there and again explained the modus of raid before his staff members. Thereafter, he sent half of the persons of the police party with PSI J.T. Rana. Whereas, he formed his own separate team with the remaining police personnels which also includes PSI Shri C.D. Jadeja. Shri J. T. Rana was instructed to keep watch on the house of Banubibi along with his team. Whereas, he himself, along with his team went to the house of the accused No-1 Gaffur Khan. On seeing this, Gaffur Khan came out of his house and started running away. At that time, Head Constable Fakirbhai Punabhai identified him and he tried to catch him, but couldn't catch the accused. The accused Rammilan Bholanath Pathak was also there at that time. He was stopped and his name and address were asked and thereafter, he was searched physically, wherein small balls of "Charas" weighing about 50 gms were found from the pocket of his pant. Apart from that, money was also recovered from him. Accused Gaffur Khan ran away after throwing a plastic bag. On searching the same, Page 4 of 31 HC-NIC Page 4 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT "Charas" was found therein. Apart from that, on searching the house of the accused, some quantity of Charas was also recovered from the container. Out of all the aforesaid quantity of recovered Charas, samples of 100 gms were seized and sealed from the house of accused Gaffur Khan and from the bag thrown by him. Whereas, the entire quantity of Charas found from Rammilan was seized and sealed as sample. Besides that, electricity bill, ration card., etc were recovered from the house of accused no.1 and the same were seized. Having done all the aforesaid procedures, they went to the house of Banubibi; raid was carried out there and charas was recovered from a tin box. Samples of 100 grams each were taken from the same and they were sealed and remaining charas was sealed. Electricity bill and ration card recovered from the house of Banubibi were seized too. Accused Banubibi and Rammilan Bholanath Pathak were arrested and at that time, muddamal was seized and panchnama was drawn. Thereafter, he went to DCB police station and Page 5 of 31 HC-NIC Page 5 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT lodged complaint against the accused Gaffurkhan Sattarkhan, his wife Amirbibi Gaffurkhan, Banubibi Habibkhan, Rammilan Bholanath Pathak. Muddamal and both arrested persons were produced along with the complaint. PSO lodged an offence on the basis of the complaint. Thereafter, he intimated his commissioner Mr. Singh about successful completion of raid and thereafter, he took over investigation of the offence. Muddamal samples drawn by him were sent to FSL for analysis. Remand of the accused Rammilan Pathak was obtained. Statements of persons with him in the raid were recorded. He verified at the place where the accused Mr. Pathak was working. Thereafter, as he was transferred due to his promotion on 30th August 1992, the investigation was handed over to PSI Mr. Jadeja. PSI Mr. Jadeja continued investigation till 14th September 1992 and when Mr. Kantilal Thakorlal Modi resumed duty as PI at DCB Police Station, investigation was handed over to him. He sent a write- up to Vadodara Municipal Corporation Ward officer Mr. Page 6 of 31 HC-NIC Page 6 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT Ravpura on 16th September 1992 about the houses under the occupancy of Gaffurkhan and Banubibi. He investigated about the scooter bearing registration number GJ-6-F-5926 at the RTO office. When Salimmiya Mustafmiya produced the said scooter on 11th October 1992, the same was seized. Following his order, PSI Mr. Ramgadhiya caught and produced the accused and he was arrested on the same day and police remand was obtained till 18th October 1992. Meanwhile, Amirbibi was arrested on 14th October 1992. Both the accused were produced in judicial custody. Thereafter, when write-up was received from Ravpura Ward Officer about the occupancy of the house, the same was kept with the record of investigation. Thereafter, certificate from FSL was received wherein muddamal was found to be "charas", the same was kept with the case papers. Muddamal samples were received from FSL on 16th October 1992. Charge-sheet was filed against the accused Gafarkhan Amirbibi, Banubibi and Rammilan, and whereas, another accused person namely Page 7 of 31 HC-NIC Page 7 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT Mohammad Husen @ Gabbar Gafarkhan could not be arrested, and hence, he was shown to be absconding accused in the column no.2 of the charge-sheet. After providing copy of the police papers to the accused persons, accused No.2 Amirbibi Gafarkhan submitted discharge application vide Exhibit-5 requesting to discharge her, as there was no evidence against her, and whereas, the prosecution submitted an application vide Exhibit-6 praying to allow it to file separate charge-sheet, as the muddamal found from the house of Banubibi and muddamal found from the house of accused Gafarkhan being for different offences. Both the above applications have been granted as per the order passed under them on 06th March 1993 and accordingly, Amirbibi Gafarkhan has been discharged from this case. Order has been passed to file separate charge-sheet against the accused persons regarding muddamal found from the house of Banubibi and thereafter it was ordered to try against the remaining accused persons and as the Page 8 of 31 HC-NIC Page 8 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT charge was framed accordingly vide Exhibit-23, the accused persons pleaded not guilty by their statements vide Exhibit-24 and 25 and thereby claimed to be tried. Hence, the evidence of prosecution was recorded. Deposition of in all total 11 witnesses from the prosecution side have been recorded. Prosecution Witness No.1 Arunkumar Ramanlal Patel, Revenue Officer working in Vadodara Municipal Corporation has been examined vide Exhibit-30. PW-2 Bipinbhai Babulal Darji and PW-3 Mohmed Usman Husen Munshi have been examined as Panch witnesses vide Exhibit-34 & 46 respectively. PW : 4-Dr. Jagdishkumar Dhanjibhai Nirmal, Assistant Director, FSL, who analyzed the samples of muddamal and issued certificate has been examined vide Exhibit-47. PW-5 Head Constable Fakirabhai Punabhai has been examined vide Exhibit-
50. He is a police personnel, who accompanied with the complainant during the raid. PW-6 P.S.I. Mr. Jagatsinh Takhtasinh Rana has been examined vide Exhibit-51. He accompanied with the complainant in the raid and Page 9 of 31 HC-NIC Page 9 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT kept watch over the house of Banubibi. PW-7 PI Shri Pravinchandra Upadhyay is the complainant, who has been examined by the prosecution vide Exh. 52. PW-8 Dharmendrasinh Fatesinh has been examined at Exh-
56. He is Head Constable who was then discharging his duty as a PSO in D.C.B. Police Station. He had registered complaint of the complainant and handed over charge of the said complaint to the complainant. PW-9 Arjunsinh Raisinh Solanki is a Head Police Constable, who has been examined at Exh.57. He was discharging duty as a Crime Writer Head in D.C.B. Police Station. He had taken over custody of muddamal and sent the samples to FSL for analysis. PW-10 Dahyabhai Bijalbhai Solanki, who is Head Constable of DCB Police Station has been examined at Exh-58. He is a carrier who took over custody of muddamal from Crime Writer Head and delivered the same at FSL. PW- 11 P.I. Shri Kantilal Thakorlal Modi has been examined at Ex-62. This officer completed rest of the investigation of this case and filed charge sheet before Page 10 of 31 HC-NIC Page 10 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT the trial Court. The complaint of the complainant is produced on the record vide Exh. 53; Seizure panchnama of contraband charas is placed vide Exh.35; Seizure panchnama of scooter is at Exh.31; the letter written by Vadodara Municipal Corporation in connection with house of the accused Gafarkhan vide Ex-63; letter regarding the accused Banubibi vide Ex- 64; Order of FSL regarding sending Muddamal vide Ex- 59; office copy of Yadi for sending muddamal vide Exh.54; receipt issued on receiving the said muddamal is placed at Exh.55; xerox copy of RC book of the scooter seized vide Exh.32 and FSL report of Ex.48 have been produced on record. The prosecution has vide pursis of Exh-63 declared closer of their evidences. After completion of evidence by the prosecution, statement under Section 313 CrPC of the accused came to be recorded below the statements Exh. 24 & 25. The defence of accused Gafarkhan Satarkhan is that he does not plead guilty. Whereas, the defence of the accused Ram milan Bholanath is that he was serving in Page 11 of 31 HC-NIC Page 11 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT Electricity branch in the area of incident. At the time of incident, as the electricity supply was stopped, he had gone to repair it. In fact, no charas has been found from him. At the end of trial, the accused persons were acquitted from the offence with which they were charged, giving rise to filing of the present Appeal by the State Heard learned advocate Ms. Jirga D Jhaveri, learned APP appearing on behalf of the appellant-State and Mr. M.J Bhuddhbhatti, learned advocate appearing on behalf of the respondent-Rammilan Bholanath Pathak [original accused no. 2].
Learned APP appearing on behalf of the appellant- State has taken us through the evidence on record and submitted that the learned trial Judge has erred in acquitting the accused though there was ample direct as well as indirect evidence available on the record connecting the accused with the crime alleged. That, the trial Court has erred in discarding the evidence of complainant, whose evidence gets duly corroborated Page 12 of 31 HC-NIC Page 12 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT with the First Information Report. That, the Court below has also erred in discarding the evidence of PW- Fakirbhai; Police Sub-Inspector-Jagatsinh Bana, who have supported the prosecution version and depicted to have recovered the muddamal article from the possession of the accused. That, the trial Court has erred in acquitting the accused on the ground that Panchas have not supported the prosecution. That, the trial Court ought to have relied upon evidence of Police Officer who were members of the raiding party, as they have no grudge against the accused persons. That, the trial Court has given unnecessary weightage to minor omissions and/or contradictions in the evidence led by the prosecution, and thereby not properly appreciated the evidence of prosecution witnesses which otherwise corroborates with each other. That, the learned trial Judge has erred in holding that there was breach of Sections 41 & 42 of the NDPS Act. That, the trial Court has taken irrelevant facts into consideration, while appreciating the prosecution evidence and thereby Page 13 of 31 HC-NIC Page 13 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT erred in acquitting the accused.
Lastly, Ms. Jirga Jhaveri, learned APP urged this Court to allow this Appeal by quashing and setting aside the impugned judgment and order dated 31st January 1994 passed by the learned Additional Sessions Judge, Vadodara acquitting the respondent-accused from the charge of offence punishable under NDPS Act in Sessions Case No. 30 of 1992.
Per contra, learned advocate Shri MJ Buddhbhatti appearing on behalf of the respondent no. 2 strongly opposed the Appeal preferred by the State and submitted that as the entire contraband goods was recovered from the possession of A1-Gafarkhan Sattarkhan Pathan, who passed away during pendency of the appeal 8th September 2009, nothing remains against the present respondent-Ram Milan Pathak; as evident from the charge framed against them. That, admittedly, the quantity of "charas" allegedly seized by the raiding party from the present respondent no.2 was 50.5662 grams, which being too small a quantity to Page 14 of 31 HC-NIC Page 14 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT constitute an offence under the NDPS Act. That, PW-2 Bipinbhai B Darji; PW-3 Mohmed Usman Munshi of raiding party have not supported the prosecution case and both of them have turned hostile, as in their cross examination, they have not supported the prosecution case. That, the prosecution case is only based on evidence of PW-4 Dr Jagdishkumar; PW-5 Fakirbhai Punabhai; PW-6 Jagatsinh T Rana and PW-7 Pravinchandra Balkrishna Upadhyay - members of the raiding party as well as officers of Forensic Science Laboratory. That, PSO Mohmed Usman Munshi [PW-8] has lodged a complaint against the respondents herein. Admittedly, in the FSL produced on the record by the prosecution, the weight of contraband article seized is shown as 50.5662 grams. Statement under Section 313 CrPC was recorded during the course of trial and as per the statement of the respondent, he was serving in the Electric Department of the area in which incident took place. That, point no. 2 for determination was held in negative by the Court below. That, there was no Page 15 of 31 HC-NIC Page 15 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT compliance of Sections 41 & 42 of the NDPS Act by the officer incharge of the raiding party. That, the respondent was searched at the spot and allegedly found with muddamal. That, documentary evidence was required to be believed and no cross examination on this aspect was drawn. That, the seal on the samples were not tallied, as per the deposition of the prosecution witnesses and it was found different. That, Marks "A", "B", "C", "D", "E" was not given to the panchnama Exh. 33. That, the State Government has not empowered the Officer-in-charge of the raiding party to conduct the raid or any special orders were issued by the State Government in that regard. That, the provisions of Section 41 of the NDPS Act are mandatory and must be complied with. If the Officer-in- charge of the raiding party had any reason to believe from his personal knowledge or information given by any person, then he should first take down such information in writing that such narcotic drugs, or psychotropic substance, or controlled substance in Page 16 of 31 HC-NIC Page 16 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT respect of which an offence punishable under the 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 V-A of the Act is kept or concealed in any building, conveyance or enclosed place, may at any time between sunrise and sunset - [a] enter into and search any such building, conveyance or place; [b] in case of resistance, break open any door and remove any obstacle to such entry; [c] seize such drug or substance, and all materials used in the manufacture thereof; 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 the Act. That, the prosecution witnesses have clearly admitted in cross before the Court below that no such information was put in writing before the raid was Page 17 of 31 HC-NIC Page 17 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT conducted. That, the prosecution has clearly failed in establishing the case against the respondents. Hence, it was requested by him to dismiss the present Appeal. Before proceeding, it will be useful to recall the broad principles of law governing the powers of the High Court under Section 378 of the Code of Criminal Procedure, 1973, while hearing an appeal against an order of acquittal passed by a trial Judge. For the sake of convenience, the law laid down by the Apex Court in the case of Lalit Kumari, reported in 1991 SCC [Cri.] 382 is aptly quoted hereunder :
"8. Before dealing with the contentions raised by the respective learned counsel, we shall examine whether the judgment of the trial Court was manifestly perverse and wholly unreasonable, compelling the appellate court to step in with the order of acquittal. It is now well settled that the power of appellate court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so.Page 18 of 31
HC-NIC Page 18 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT This Court in Mathai Methews v. State of Maharashtra, [1970] 3 SCC 772 has pointed out that :
"5. If a finding reached by the trial Court cannot be said to be an unreasonable finding, then the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record."
Regarding the power of the appellate court in dislodging a finding of acquittal of a trial court, there are plethora of decisions, but we feel that it is not necessary for us to refer to all those decisions because we are of the firm view that the impugned judgment is liable to be set aside even on the ground that the appellate court has gone wrong in setting aside the order of acquittal on the reappraisal of the available evidence."
Having considered facts of the case, submissions made by learned APP as well as learned advocate for the respondent, now the only charge remains against the present respondent is that when he was searched by a Police Officer, 22 packets consisting pieces of charas were found from the pocket of his pant, in Page 19 of 31 HC-NIC Page 19 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT addition of Rs. 220/= cash. As he was asked in respect of permit for possession of the contraband article "charas" it was replied by the respondent accused that he had no permit to possess the same. Weight of contraband goods was 50 grams, as per the prosecution case. It is further the case of prosecution that Head Constable Fakirbhai Punabhai [PW-5] introduced himself to the accused Gafarkhan Satarkhan Pathan, who thereafter immediately threw a plastic bag containing contraband and ran away, and hence, he could not be arrested. The other person [ie., the present respondent no. 2] when was trying to escape from the house, was intercepted by the Police officers and inquired. He introduced himself as Rammilan Pathak. He was persuaded about the matter and given to understand that his personal physical search shall have to be made. He was offered an option by the Police Officer as to whether he would like to be searched by the Police Officers, but he denied to do so and thereafter, he was searched by the Police Officers Page 20 of 31 HC-NIC Page 20 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT and found that certain packets consisting contraband charas were found from the pocket of his pant, in addition to an amount of Rs. 220/=.
Here this Court would like to discuss other evidences led by the prosecution, but the only material evidence would be required to be considered. PW-7 Pravinchandra B Upadhyay has admitted in his cross examination that he had received information in connection with an offence on 2nd August 1992, but it was not put in writing on record. Indisputably, the information received by the witness was in connection with contraband article "charas" at the residence of the accused. Further, he has also admitted that the information received by him was not forwarded to superior officer. It also appears from the deposition of PW-5 Fakirbhai Punabhai [Exh. 50]; PW-6 Jagatsinh T Rana [Exh. 51] and the complainant Shri Pravinchandra Balkrishna Upadhyay [Exh. 52] that two separate notes were made by Mr. Upadhyay. A note was made in the Station Diary to proceed for a raid, but no copy of the Page 21 of 31 HC-NIC Page 21 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT Station Diary was produced on the record by the prosecution nor any explanation is given in the evidence by any of the witnesses.
Here, this Court would like to refer to the relevant provisions of Chapter V of the Act which deals with procedure to be followed while conducting search, recovery and seizure. Section 41 of the NDPS Act deals with power to issue warrant and authorization. The Officers authorized under sub-section [2] of Section 41, or the Officers who are further authorized to effect arrest or search any person have been given same powers as to an Officer acting under Section 42 of the NDPS Act. Thus, a Police Officer on whom such powers have not been conferred by the concerned Government or who has not been assigned to execute the warrant of arrest or search cannot arrest such person or search any building, etc. The other safeguards provided in sub- section [2] of Section 41 of the NDPS Act is that an authorized Gazetted Officer can arrest such person or search any building, etc., under the circumstances Page 22 of 31 HC-NIC Page 22 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT mentioned therein, if he has reason to believe from the personal knowledge or information given by any person or taken down in writing. However, in the case of information supplied by any other person like the secret informer, he has to take such information in writing. In other words, it can be well said that the officers of the gazetted rank duly authorized under sub-section (2) of Section 41 has to exhibit his reason to believe in writing regarding the involvement of any suspect for the commission of the above referred offences or concealment of any contraband or commission of any such offence in some place, building, etc. Thus, due compliance of Sections 41 and 42 of NDPS Act are mandatory.
Here, admittedly, whatever information was received by PI-Shri PB Upadhyay from the informer in respect of custody of contraband "charas" has not exhibited, nor his reason to believe in writing regarding the involvement of the respondents for the commission of the offence alleged have been recorded. Further, it Page 23 of 31 HC-NIC Page 23 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT appears from the deposition of this witness and others that while searching the respondents, he was only asked to search by the Police Officer, if he intend, but he refused. None of the witnesses have stated in their deposition that he was asked and informed that search can be taken in presence of a gazetted officer; as required under Section 50 of the NDPS Act. Further, none of the prosecution witnesses have stated that while conducting search of the accused, any question was put to him. Even asking an accused person as to whether he wanted to be searched before the Police Officer would not be sufficient to comply with the provisions of NDPS Act.
Moreover, there is nothing on record that the Police Officers who reached at the residence of the accused were duly authorized under sub-section [2] of Section 41 of the NDPS Act. Absence of statutory sanction authorizing such search etc., would render the act of the officer illegal and would vitiated the proceedings. Thus, the Police Officer who has received Page 24 of 31 HC-NIC Page 24 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT information from the informer was required to record it in writing in the concerned register and forthwith send a copy thereof to his immediate superior before proceeding to take action. The provisions of Section 42 of NDPS Act are mandatory in nature and hence, non compliance of these mandatory provisions entitles the respondent for acquittal. Therefore, any officer, as defined in Section 41 of the Act, may between sunrise and sunset - [a] enter into and search any such suspected building, conveyance or place as aforesaid; [b] in case of resistance, break open any doors and remove any obstacle to such entry; [c] seize such drug or substance and all materials used for the manufacture of such drug or substance; [d] seize any other article, any animal, or conveyance which he has reason to believe to be liable to confiscation under the Act; [e] seize any document or article which he has reason to believe to furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and [f] detain and search and, Page 25 of 31 HC-NIC Page 25 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT if proper, arrest any person which he has reason to believe to have committed any offence, as aforesaid. Thus, the powers under Section 42 of the Act can be exercised by an authorized officer, if he has reason to believe that, an offence punishable under Chapter IV of the Act has been committed. Here, the Police Officer has received information of contraband article from some other source - not being personal knowledge. Further, a rider is imposed that it must be reduced into writing. These safeguards provided in Section 42 are mandatory and the facts of the instant case reveal that the search was conducted on the basis of information received by the Police Officer and such information was not reduced to writing. Even, the Police Inspector has stated that he has not forwarded the same to his superior officer. Therefore, there is a violation of Section 42 of the NDPS Act. The prosecution also has not at any point of time stated that the Police Inspector Shri Upadhyay was an authorized Officer within the Page 26 of 31 HC-NIC Page 26 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT meaning of Section 42 of the Act. It is not sufficient to be an Inspector of Police or an officer of the Government above a certain rank to have the power of entry, search, seizure and arrest without warrant, but it is necessary for such Police Officers that they must have been authorized by the Government either by a general order, or by a special order. Neither in the statement of witnesses nor from the record of the case, it has been shown that the witnesses who conducted the search and arrested the accused person were authorized by the State Government in terms of Section 42 of the NDPS Act. Even on this ground alone, for the reasons aforestated, this Appeal deserves to be dismissed. Moreover, the testimonies of prosecution witnesses would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer, if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known Page 27 of 31 HC-NIC Page 27 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person. Further, it appears from the deposition of PW-5 Fakirbhai Punabhai [Exh. 50]; PW-6 Jagatsinh T Rana [Exh. 51] and PW-7 Pravinchandra Balkrishna Upadhyay [Exh. 52] that their testimonies are contrary to each other, and therefore, it cannot be relied upon. PW-4 Dr. Jagdishkumar, Asstt. Director, FSL is examined by the prosecution at Exh. 47. He has prepared a Report at Exh. 48 and admitted in his cross examination that Mark "A", "B", "C" on the samples for analysis were given from the Police Station. He has admitted that Mark A1 to A22 were given in the Report at Exh. 48, however, he has no idea who had given these marks Page 28 of 31 HC-NIC Page 28 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT from his office. Therefore, it transpires that Mark "A" to "F" given to the samples were marked from the Police Station itself. Here, if we consider the panchnama Exh. 35, no marks appears to have been given to the samples. Whatever samples were seized, they were marked as "A", "B", "C", "D", "E", "F". Therefore, it can be safely assumed that till the panchnama Exh. 35 was prepared, no marks were given. Further, it transpires from the panchnama Exh. 35 that on a seized articles there was a seal applied by Police Inspector, DCB Police Station, Vadodara City. As per the deposition of Dr. Jagdishkumar, on the muddamal which was brought before him, it was marked as "P.I., DCB Police Station, Vadodara City" in English language. This creates a doubt over the prosecution story, as when the muddamal was seized by preparing the panchnama, seal was affixed in Gujarati language and no marks were given, but thereafter, marks were given to the sample articles viz., "A" "B" "C" "D"..respectively in English language. There is no explanation coming forth Page 29 of 31 HC-NIC Page 29 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT from the prosecution as to at what stage, marks were given and seal applied on muddamal articles was changed. Further, no description of the vehicles in which they had gone for raid was mentioned in the panchnama Exh. 35, or even in the complaint Exh. 53. More importantly, two panchas viz., Bipinbhai Babubhai Darji and Mohmed Usman Mohd. Husen Munshi in their testimonies at Exh. 34 & 46 respectively have not supported the prosecution case, and thereby, declared hostile.
In the backdrop of the aforesaid analysis, this Court need not say anything further. Suffice will it be to say that the prosecution has not been able to prove the case against the accused persons beyond a shadow of reasonable doubt. Therefore, the present Appeal preferred by the State qua the respondent no. 2- Rammilan Pathak is dismissed.
The respondent no.2-Rammilan Pathak is reported to be on bail. His bail bond stands cancelled and sureties discharged. He need not surrender again, Page 30 of 31 HC-NIC Page 30 of 31 Created On Fri Dec 22 00:32:46 IST 2017 R/CR.A/615/1994 CAV JUDGMENT unless required in any other case.
Registry to transmit the record of this case to the concerned Court. Amount deposited by the respondents herein, pursuant to an Order dated 2nd August 1996 passed by this Court, needs to be refunded to them alongwith interest accrued thereon by the concerned learned Principal District Judge; on due verification.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) Prakash Page 31 of 31 HC-NIC Page 31 of 31 Created On Fri Dec 22 00:32:46 IST 2017