Gujarat High Court
Mangalsinh Ratibhansinh Parihar vs State Of Gujarat on 16 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.A/797/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 797 of 2012
With
R/CRIMINAL APPEAL NO. 1073 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MANGALSINH RATIBHANSINH PARIHAR
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1,2,3,4,5
MR JM BUDDHBHATTI for the PETITIONER(s) No. 1,2,3,4
MR JM BUDDHBHATTI(1239) for the PETITIONER(s) No. 5
MR.MRUDUL M BAROT(3750) for the PETITIONER(s) No. 3,4
MS SADHANA SAGAR for the PETITIONER(s) No. 5
MR RUTVIJ OZA, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 16/03/2018
Page 1 of 47
R/CR.A/797/2012 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Both these Criminal Appeals arise out of common judgment and order of conviction and sentence dated 27.4.2012 by learned Additional Sessions Judge, City Sessions Court, Ahmedabad, in Sessions Case No.410 of 2009 and, hence, with the consent of the parties these appeals are taken up for final disposal.
2. By the above judgment and order, appellants-original accused nos.1 to 5 of Criminal Appeal No.797 of 2012 came to be convicted under Section 8 (C), 20 (b) (ii) (B) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act") and sentenced to rigorous imprisonment for a period of ten years and to pay fine of Rs.1 Lac and, in default thereof, rigorous imprisonment of six months and, therefore, the appeal is preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short, "the Code").
3. Criminal Appeal No.1073 of 2012 is preferred by the State of Gujarat-appellant under Section 377 of the Code with a prayer to enhance the sentence imposed upon respondents- original accused to the maximum so provided under the NDPS Act in view of the fact that case of the prosecution was believed beyond reasonable doubt by learned Sessions Judge, who ought to have convicted the accused under Section 8 (C), 20 (b) (ii) (C) and 29 of the NDPS Act and not under Section 20
(b) (ii) (B) of the Act.
4. The facts of the complaint filed by Shri J.M.Yadav, PSI, Crime Branch Ahmedabad City on 16.9.2009 so summarized by Page 2 of 47 R/CR.A/797/2012 CAV JUDGMENT learned trial Judge in paragraphs 2.1 and 2.2 of the impugned judgment are reproduced here under, which reveal the case of the prosecution:-
"2.1 It is alleged in the complaint that on 16.09.2009 at about 14.58 hours I have received a confidential Batmi that Mangalsinh, Ramesh and Anil three persons will handover the possession of big quantity of Ganja to the two persons Deepak and Jayanti at about 16.30 hours near Prince Hotel besides Ahmedabad-Vadodara Express Highway and out of that Mangalsinh has weared Salatic coloured shirt and black pant and he is aged about 40 - 50 years; Ramesh weared a white coloured shirt and black pant and he is aged about 50 years and Deepak weared a white shirt having lining and dark blue colour pant and he is aged about 35 - 40 years. The complainant has further stated that on receiving the Batmi he had reduced the same in writing at about 15.10 hours and had informed the PI Mr. P.D. Vaghela and thereafter panchas were called and panchas and other police persons were informed about the confidential Batmi and they were informed about the planning of the execution of the raid as per Batmi and after executing primary panchnama, they reached at the place.
2.2 It is further stated in the complaint that when they reached at the place stated in the Batmi, at that time, at about 4.45 p.m. They had found that two persons as per the description of the Batmi were found near the closed ATM Centre of State Bank of India and thereafter at about 5.30 p.m. three persons were came with bags from the Express Highway and their description was as per the Batmi and thereafter those three persons had exchanged talk with the said two persons and thereafter two persons of them (three persons) had opened his bag and had handed over two packets to the two persons and during that the police and panchas had raided them and all five persons were informed about the raid and they were given identification about the police officers and panchas. .............."
4.1 That disclosure of names of five persons are original accused nos.1 to 5 and appellants of Criminal Appeal No.797 of 2012 in which they have challenged their conviction and sentence under the NDPS Act.
Page 3 of 47 R/CR.A/797/2012 CAV JUDGMENT4.2 That upon following necessary procedure by members of the raiding party and panchas in the nearby Prince Hotel, the seizure procedure was performed and quantity of Ganja and muddamal which was found from the accused persons viz. accused no.1, Mangalsinh Ratibhansinh Parihar was in possession of 6 kg. 810 grams ganja (cannabis), accused no.2- Rameshbhai Tulsibhai Goswami, was found in possession of 7 kg. 88 grams, accused no.3 Anil Natvarlal Patel was in possession of 14 kg. 452 grams, accused no.4-Jayantibhai Kanjibhai Prajapati was in possession of 7 kg. 80 grams and accused no.5-Dipak Kantilal Thakkar was found in possession of 7 kg. 06 grams of ganja (cannabis) and, thus, total 42 kg. and 406 grams ganja (cannabis) was found from the possession of the accused.
4.3 That upon calling a weight-man, Ranjitsinh Mahavirsinh Rathod, PW-9, quantity of ganja was weighed and, thereafter, upon instructions of one Hinglajiya, PW-13, FSL Officer, quantity of ganja marked as A to F and samples were sent to FSL and the complaint came to be registered in DCB Police Station as Prohibition offence No.5019/2009 under Section 8 (C), 20 (b) (ii) (C) of the NDPS Act and the offences came to be investigated by Police Inspector, Shri K.K.Patel, DCB Police Station, Ahmedabad, PW-18. However, at the end of investigation all the above offences, offence under Section 29 of the NDPS Act also found and the case was triable by the Sessions Court, who took cognizance of the offences and registered as Sessions Case No.410 of 2009.
Page 4 of 47 R/CR.A/797/2012 CAV JUDGMENT4.4 In all prosecution examined 18 witnesses and produced 31 documentary evidence in support of its case and the evidence was found to be trustworthy and reliable and, therefore, believed by learned Sessions Judge resulting into conviction and sentence of five accused.
5. Learned counsel appearing for the appellants-convicts would jointly contend that the prosecution miserably failed to prove the charges levelled against accused nos.1 to 5 and all should have been acquitted, keeping in mind cardinal principles of appreciation of evidence in criminal trial. That the cross-examination of prosecution witnesses by the defence and admissions emerging therein was wholly ignored. Not a single prosecution witness is reliable and various inconsistencies, contradictions and discrepancies emerge in their testimonies. In a case of the prosecution based on a receipt of prior information by PW-7, it was admitted that the prior information was received by him and the same was reduced into writing but actually such secret information written in his own hand-writing is not produced on record and, thus, genuineness of the case of prosecution is doubtful and it is in clear breach of Section 42 (2) of the NDPS Act. Besides, even contraband seized whether was ganja (cannabis) is also not established and proved beyond reasonable doubt. That muddamal seized and samples collected were not kept in safe and proper custody and possibility of tampering cannot be ruled out. That affixing of computerized slips on the samples, no explanation was coming-forth and no mention at all of such slip in any record or even in panchnama and FSL report is noticed. Even PW-9, weight-man, who weighed the contraband admitted in his cross-examination by the defence that the Page 5 of 47 R/CR.A/797/2012 CAV JUDGMENT whole case of the prosecution is doubtful and it appears that certificate for weight, Exh.79, is nothing but concoction. This PW-9 is not declared hostile.
5.1 It is emphatically contended that considering the definition of Ganja in Section 2 (iii) (b) of the NDPS Act, if the FSL report is seen, quantitative analysis was not conducted and, therefore, prosecution failed to bring on record the evidence regarding purity or percentage of THC viz. Tetra Hydro Cannabinol. Even procedure of mandatory in nature under Sections 42, 52, 52-A, 55 and 57 of the NDPS Act and also that of Section 50, 50-A and 58 of the Code were not followed. In absence of proving contents of panchnama of seizure and PW-1, PW-2, panch witnesses declared hostile, seizure has remained not proved. Not a single witness has supported the case of prosecution and if the definition of ganja contained in Section 2 (iii) (b) of the NDPS Act is seen, it is about flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and cannabis plant is defined in Section 2 (iv) means any plant of the genus cannabis and, therefore, the above aspect was not considered at all by learned trial Judge and conviction and sentence so ordered by learned trial Judge deserves to be quashed and set aside.
6. As against above, learned APP for the State would rely on the evidence, oral as well as documentary, and findings and conclusion drawn by learned trial Judge based on reasonings at the end of analysis of evidence and would contend that the right from receiving secret information, reducing the same into Page 6 of 47 R/CR.A/797/2012 CAV JUDGMENT writing, all the accused were found in possession of contraband ganja, seizure procedure followed and testimonies of members of raiding party, weight-man, PW-9 and other prosecution witnesses do not reveal breach of any Section of the NDPS Act, on the contrary though case of the prosecution was believed by learned trial Judge and considering the quantity of ganja seized from each of the accused and weighing for more than 42 kgs. in view of Section 8 (C) and 29 read with Section 20 (b) (ii) (C), the sentence ought to have been inflicted by the learned trial Judge to the maximum as prescribed. Therefore, the appeal filed by the convicts deserves to be rejected and the appeal filed by the State for enhancement of the sentence be allowed accordingly.
7. That entire record is made available for our consideration in the context of judgment and order under challenge and submissions made by learned counsel for the appellant- accused and learned APP, we find that following oral as well as documentary evidence on record.
A - Complainant PW-7 J.M. Yadav, PSI Exh.66 B - Witnesses
1. PW-3 Vijaysinh Dalpatsinh KhantPolice Constable Exh.44
2. PW-4 Hargovindsinh Kalyansinh Rajput Head Constable, Exh.46
3. PW-6 Indrasinh Vajubha Zala Exh.52(Executive Page 7 of 47 R/CR.A/797/2012 CAV JUDGMENT Magistrate)
4. PW-8 PSO N.A. Pathan Exh.75
5. PW-9 Ranjitsinh Mahavirsinh Rathod Exh.78
6. PW-10 Adesinh S. Vasava, ASI Exh.80
7. PW-11 Pushpaben Rameshbhai Exh.82
8. PW-12 Vikramsinh N. Bihola (PSO- Crime Br.) Exh.83
9. PW-13 A.M. Hingarajiya (FSL Officer) Exh.87
10.PW-14 J.F. Mansuri Scientific Officer Exh.89
11.PW-15 Tejalben D. Shah - Scientific Officer Exh.94
12.PW-16 P.I. P.G. Waghela Exh.95
13.PW-17 PSI H.G. Waghela Exh.113
14.PW-18 PI K.K. Patel (Investigation Officer) Exh.124 C - Panchas
1. PW-1 Rajesh Bolanath Rajput Exh.19
2. PW-2 Arunkumar Shankerlal Chorasiya Exh.43
3. PW-5 Kamlesh Vithalbha Mai Exh.49 Documentary evidences A - Complaint
1. Note of Gupt. Batami Exh.67
2. Complaint - FIR Exh.66
3. Report u/s 157 to register FIR Exh.101 B - Panchnamas
1. Raid Panchnama Exh.25
2. Seizer Panchnama at house of accused Ramesh Tulsidas Exh.50 C - Raid Documents Page 8 of 47 R/CR.A/797/2012 CAV JUDGMENT
1. Resolution u/s 42 for search in house of Accused Ramesh Tulsidas, Exh.51
2. Yadi for seals Exh.76
3. Abstract of Station Diary (15-58 p.m.) Exh.77
4. Certificate for weight Exh.79
5. Abstract of Muddamal Register Exh.81
6. Certified copies of Muddamal Receipts Exh.84
7. Seizure memos Exh.96 to 100
8. Report u/s 42(1) proviso Exh.102
9. Information sent to Police Commissioner for Gupt Batami, Exh.103
10.Yadi to return seals Exh.104
11.Yadi to FSL for spot inspection Exh.105
12.Report u/s 57 Exh.106
13.Resolution u/s 50 Exh.107
14.Resolution u/s 42 Exh.108
15.Yadi for handing over Muddamal samples Mark A/1 to F/1 Exh.125 D - FSL Documents
1. Muddamal Ravangi Note Exh.47
2. Receipt of FSL Exh.48
3. Letter of FSL Exh.90
4. Letter of FSL Exh.91
5. Report of J.F. Mansuri -Scientific Officer Exh.92
6. Drawing of parcels Exh.93
7. Yadi to FSL Exh.130 E - Documents regarding I.D. Parade
1. Identity Parade Panchnama Exh.53 Page 9 of 47 R/CR.A/797/2012 CAV JUDGMENT
2. Yadi to Executive Magistrate Exh.54
3. Yadi by Executive Magistrate Exh.55
4. Yadi for accused Exh.126 to 129
8. We have entire record of these appeals, which form part of evidence considered by the trial Court, and a careful consideration thereof in the context of submissions made by learned counsel for the defence and learned Additional Public Prosecutor vis-a-vis judgment under challenge, we find that, according to learned trial Judge, ganja as defined under Section 2 (iii) (b) of the NDPS Act having total quantity of 42.406 kgs. was seized and recovered from the accused. We have gone through the provisions of Section 20 (b) (ii) (C) read with Section 29 of the NDPS Act. Ganja, which was recovered, was in commercial quantity and that accused have committed offence under Section 20 (b) (ii) (C) read with Section 29 of the NDPS Act. Even the learned Judge referred to the punishment provided in the above Section i.e. rigorous imprisonment which shall not be less than ten years but it may extend to 20 years and shall also be liable to fine which shall not be less than Rs.1 Lac but it may extend to Rs.2 Lacs. That contention of learned advocate for the defence that individual case is to be considered from the angle of possession of the contraband, which was not less than commercial quantity, and punishment to be awarded for less than ten years was rejected keeping in mind Section 29 of the NDPS Act and it was found to be not a fit case to impose punishment less than ten years since commercial quantity of ganja was recovered from the accused.
9. However, while convicting the accused under Section 20
(b) (ii) (B) read with Section 29 of the NDPS Act, sentence is Page 10 of 47 R/CR.A/797/2012 CAV JUDGMENT imposed of rigorous imprisonment for a period of ten years and a fine of Rs.1 Lacs and in default of payment of fine, further rigorous imprisonment for a period of six months was just and proper sentence for the offence committed by the accused.
10. Thus, the contention raised by learned APP of justification of sentence for a period of ten years upon consideration of Section 20 (b) (ii) (B) read with Section 29 deserves to be examined in view of findings recorded in paragraph 8 by learned trial Judge that accused have committed an offence under Section 20 (b) (ii) (C) read with Section 29 of the NDPS Act, which provide rigorous imprisonment which shall not be less than ten years etc.
11. Before that we would like to address to the contentions raised on law based on Sections 42, 50 and other Sections of the NDPS Act in light of the decisions of the Apex Court. No doubt in paragraph 115 of the judgment, learned Sessions Judge has referred to the decision in the case of Karnail Singh v. State of Haryana, a decision of the Constitution Bench of the Apex Court as reported in 2009 (2) Criminal 475 = 2009 SCC.
12. It is profitable to re-visit the law on Sections 42 and 50 and other connected and relevant Sections of the NDPS Act and referred to in another appeal to be considered along with present group of appeals.
13. The Apex Court on various occasions considered requirement of procedure to be followed by NCB officials under Sections 41, 42, 50, 52 and 57 of the NDPS Act, and for better Page 11 of 47 R/CR.A/797/2012 CAV JUDGMENT appreciating such decisions and law laid down therein the same are reproduced hereafter.
13.1 In the case of State of Punjab v. Balbir Singh (1994)3 SCC 299 in para 15 reference was made to Section 42(1) of NDPS Act in the context of stringent provisions for control and regulation of operation relating to drugs and psychotropic substance vis-a-vis to avoid harm to the innocent persons and to avoid abuse of the provision by the officers, certain safeguards are provided in the NDPS Act and failure to exercise mandatory requirement while entry, search, seizure or arrest in breach thereof held to be affecting case of the prosecution and vitiating the trial.
13.2 In para 25 of the above decision, the Apex Court set out conclusions about frequently arising questions to be considered by the trial courts in the context of Sections 41, 42, 50, 52 and 57 of the NDPS Act, which reads as under:-
"25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act.Page 12 of 47 R/CR.A/797/2012 CAV JUDGMENT
(2-A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act, etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41 (2) and 42 (1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under section 42(1) the empowered officer if he has prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offneces are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If Page 13 of 47 R/CR.A/797/2012 CAV JUDGMENT there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under section 41(2) of the Act, carries out a search, he would be doing so under the provisions of Cr. P.C., namely, sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information, the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by Page 14 of 47 R/CR.A/797/2012 CAV JUDGMENT themselves not mandatory. If there is non-compliance or if there are lapses like delay, etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
13.3 A three Judges Bench in the case Saiyad Mohd. Saiyad Umar Saiyed & ors. v. State of Gujarat (1995)3) SCC 610 endorsed the judgment of Balbir Singh [supra].
13.4 A Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh (1999)6 SCC 172 again considered the provisions of NDPS Act and earlier judgment and noticed that judgment in the case of Balbir Singh [supra] which found approval by three judges bench in Saiyad Mohd. Saiyad Umar Saiyed [supra] and a contrary view to some extent was taken by two judges bench in the case of State of Himachal Pradesh v. Pirthi Chand & Anr. (1996)2 SCC 37, the Constitution Bench approved the view taken by the Apex Court in the case of Balbir Singh [supra] that it is an obligation of mandatory nature upon authorized officer under Section 50 of the NDPS Act to inform the suspect that he has right to be informed in the presence of the Gazetted Officer and if the search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles doubtful and vitiates the conviction and sentence of the accused. A Constitution Bench of the Apex Court had an occasion to again consider Section 50 of the NDPS Act in the case of Baldev Singh (supra) in which safeguards provided in Section 50 about basic right of an accused were considered and in para 57 has concluded as Page 15 of 47 R/CR.A/797/2012 CAV JUDGMENT under:-
"57. On the basis of the reasoning and discussion above, the following conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may Page 16 of 47 R/CR.A/797/2012 CAV JUDGMENT also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of Page 17 of 47 R/CR.A/797/2012 CAV JUDGMENT the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case and Jasbir Singhs case are not in tune with the correct exposition of law as laid down in Pooran Mals case."
13.5 In the case of Basheer v. State of Kerala, [2004] 3 SCC 609 proviso to section 41(1) of the amending Act 9 of 2001 was held to be constitutional and not hit by Article 14 the Constitution of India.
13.6 The case of Vijaysinh Chandubhai Jadeja v. State of Gujarat, (2011) 1 SCC 609] was referred to a Constitution Bench of the Apex Court to decide the question as to whether Section 50 of NDPS Act casts a duty on the empowered officer to inform the suspect of his desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the Section 50?
13.7 In the above case, a Constitution Bench of the Apex Court after considering the controversy involved in the matter has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provisions of Section 50 must be very strictly construed. The nature of discharge of obligation upon the authority under Section 50 is statutory and is not to be deviated. Before deciding above issue, in paragraph 22 the Apex Court considered provisions of Section 41 and in paragraph 23 conclusions drawn by earlier Page 18 of 47 R/CR.A/797/2012 CAV JUDGMENT Constitution Bench in the case of Baldev Singh (supra) were considered. The Apex Court, in the above judgment, while answering the reference, in paras 28 to 32 held as under:
"28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's case (supra), on the issue before us, as follows:
"11. ...What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it."
However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words:
"12. The use of the expression "substantial compliance" was made in the background that the searching Page 19 of 47 R/CR.A/797/2012 CAV JUDGMENT officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word 2 in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations."
It is manifest from the afore-extracted paragraph that Joseph Fernandez (supra) does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra).
29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Re Presidential Poll, in re:
"13. ...It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every Page 20 of 47 R/CR.A/797/2012 CAV JUDGMENT law is the reason and spirit of the law, it is the animus imponent is, the intention of the law maker expressed in the law itself, taken as a whole."
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of 14 (1974) 2 SCC 33 2 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
(Emphasis supplied) 13.8 Vijaysinh Chandubhai Jadeja [supra] considered in length, provisions of Section 50 of the NDPS Act by referring to decision of constitution Bench in the case of Baldev Singh [supra] and also Karnail Singh [supra] and paras 20, 21, and 22 conclusions are given by reiterating law laid down in the case of Baldev Singh [supra] and even concept of 'substantial compliance' with the requirement of Page 21 of 47 R/CR.A/797/2012 CAV JUDGMENT Section 50 of the NDPS Act is held to be neither born out form the language of sub-section (1) of section nor it is in consonance with the dictum laid down in the case of Baldev Singh [supra].
13.9 In the case of Myla Venkateswarlu v. State of Andhra Pradesh (2015)5 SCC 226, the Apex Court held that a clear communication with clarity is must while complying with Section 50(1) of The NDPS Act and such communication will qualify as a valid communication of the right under Section 50(1) of the NDPS Act, which must contain three elements;
[1] That the person sought to be searched has a right of being taken to the nearest Magistrate or gazetted officer in whose presence the search of his person would be conducted; and [2] Of being taken to the nearest Magistrate or gazetted officer [it seems that a government communication that the accused has the right of the presence of a Magistrate or gazetted officer at the location where the person has been accosted for th search would not be enough; it has to be communicated that the said accosted person has the right to be taken to the location where the Magistrate or gazetted officer is; such an interpretation seems consistent with the safeguard that Section 50(1) seeks to provide i.e. that people do not have narcotics planted on them by the police or others; and [3] That the right under Section 50(1) pertains to being taken to either the nearest Magistrate or gazetted officer other than the searching officer, and that there must a clear communication of this choice i.e. there must be a mention of the nearest [I] Magistrate, and [ii] gazetted officer, and [iii] that the accosted person has a choice to be taken to either of them.
Page 22 of 47 R/CR.A/797/2012 CAV JUDGMENT13.10 The above judgment also referred to decision in the case of Baldev Singh [supra].
13.11 In the case of Union of India v. Satrohan reported in (2008) 8 SCC 313, a Bench of two Judges of the Apex Court relied on M.Prabhulal v. Directorate of Revenue Intelligence (supra) and quoted paragraphs 8, 9 and 14 in the context of nature of compliance of Section 42 of the NDPS Act, which reads as under:-
"13. So far as the applicability of Section 42 is concerned few decisions need to be noted. In M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted as follows:
"8. Now, we come to the last and rather more serious objections raised on behalf of the appellants regarding the non-compliance with Section 42 of the NDPS Act vitiating the conviction which looks quite formidable but only on the first impression and not on its deeper examination. The contention of Mr R.K.Jain is that the view of the High Court that when a Gazetted Officer himself conducts a search it is not necessary to comply with Section 42(2) of the Act, is clearly erroneous.Section 42(2) provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. This was the statutory provision at the relevant time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 which came into force on 2-10-2001, Section 42(2) was amended whereunder the information taken down in writing under sub-section (1) or grounds of belief recorded under the proviso thereto are required to be sent within seventy-two hours to officers immediate official superior. The contention is that the officer who searched and seized the Page 23 of 47 R/CR.A/797/2012 CAV JUDGMENT contraband did so on information received by him as per Ext. PW 1 but the said information was not forwarded to his superior officer as contemplated in Section 42(2) of the NDPS Act, thus vitiating the entire prosecution. Further argues the counsel that the respondent after grant of bail to the appellants by the High Court taking into consideration the non- compliance with Section 42(2) has tried to fill in the lacuna with a view to show the compliance of this mandatory provision.
9. The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the Department. This fact is not in dispute. According to Mr Vasdev, learned Senior Counsel for the respondent, Section 42(2) is not applicable when an empowered Gazetted Officer conducts the arrest, search and seizure. The counsel submits that there was no obligation on the officer to comply with the requirement of Section 42(2) of the NDPS Act. It was also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with.
14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub- section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power of seizure. Section 42 provides for procedure and power of entry, search, seizure and arrest without Page 24 of 47 R/CR.A/797/2012 CAV JUDGMENT warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub- section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by subsection (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which Page 25 of 47 R/CR.A/797/2012 CAV JUDGMENT gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh, Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Beckodan Abdul Rahiman v. State of Kerala on the aspects under consideration are neither relevant nor applicable."
13.12 In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 again a Constitution Bench of the Apex Court considered Sections 42 of the NDPS Act. In view of divergent opinions in earlier two cases which has resulted in placing of the matter before the Larger Bench. In paras 1 and 2 of the above judgment, the apex court referred the issues for which the matter was referred to Constitution Bench and conclusions were drawn in para 35 of the said judgment. Paragraphs 1, 2 and 35 of the above judgment read as under:
"1. In the case of Abdul Rahsid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513, a three- Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances At, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient.
2 In view of the conflicting opinions regarding Page 26 of 47 R/CR.A/797/2012 CAV JUDGMENT the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue.
35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
[a] The Officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
[b] But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
[c] In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof Page 27 of 47 R/CR.A/797/2012 CAV JUDGMENT to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
[d] While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.
13.13 In the case of State of Rajasthan v. Jag Raj Singh @ Hansa in Criminal Appeal No.1233 of 2006 in which again the Apex Court considered the provisions of Sections 42 and 50 of the NDPS Act.
13.14 In the case of Ritesh Chakravarti v. State of Madhya Pradesh (2006)12 SCC 321 in the context of Sections 42 and 50 of NDPS Act, upon receipt of information by Inspector about Page 28 of 47 R/CR.A/797/2012 CAV JUDGMENT person carrying contraband articles of about 1.5 kgs. was boarding on a bus at a particular place was apprehended by Sub-Inspector and contention was raised that suspect accused was given an option of search by a Magistrate or Gazetted Officer in terms of Section 50 of the Act and opium weighing 1.3 kgs. was recovered, the prosecution failed to examine competent witnesses viz. Inspector and the officer, who had received information and also independent witnesses, though search was conducted of a busy place like bus stand, the Apex Court held that absence of independent witnesses non-
examination of key members of the raid party and absence of explanation as to how apprehended person was identified, raised serious doubt about veracity of the prosecution case and it was held that prosecution failed to prove its case beyond reasonable doubt.
13.15 In the case of Union of India v. Shah Alam & Anr. (2009)16 SCC 644, where recovery of heroin was made from bags being carried out by accused and not from their person. Relying on the decision in the case of State of Himachal Pradesh v. Pawan Kumar (2005)4 SCC 350, the word `person' would mean a human being with appropriate coverings and clothings and also footwear and a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being including items like a thaila, a jhola, a gathri, a holdall, a carton, etc. Thus, Section 50 of NDPS Act laid down the conditions for search of the person and not any bag, briefcase, etc. and provisions of Section 50 had no application in the facts of this case or even non-examination of two witnesses of search and recovery was another grave omission by prosecution and Page 29 of 47 R/CR.A/797/2012 CAV JUDGMENT accused were given benefit and upheld the conviction of the accused.
13.16 Similar such view was taken in the case of Dilip & Anr. v. State of M.P. (2007)1 SCC 450 and it was further held that benefit of doubt should be given to the accused if two views are possible in a criminal trial.
13.17 In the case of Kishan Chand v. State of Haryana (2013)2 SCC 502 in the context of Sections 42 and 57 of the NDPS Act, the Apex Court noticing provisions of both the above sections, it was held that Sections 42 and 57 are neither interlinked nor interdependent so as to dispense compliance of one with compliance of another. Sections 42 and 57 operate in different fields and at different stages and each has to be strictly complied with as per its own norms and the above aspect is to be kept in mind.
13.18 Even if seized articles are not kept in a safe custody and sending of such articles to chemical examiner if found doubtful, the conviction was held to be unsustainable.
13.19 In the case of Rajesh Jagdamba Avasthi v. State of Goa (2006)1 CCC [Cri.] 150 credibility of recovery proceedings is considerably eroded if the quantity found by the analyst is less than the quantity sealed and sent to him. The question is not how much contraband was seized but whether there is actual seizure and whether what was seized was really sent for chemical analysis or not.
Page 30 of 47 R/CR.A/797/2012 CAV JUDGMENT13.20 In the case of State of Gujarat v. Ismail U Haji Patel & Anr. (2003)12 SCC 291, the issue of safe custody of seized articles as required under Section 55, was not established and in that case it was held that the prosecution has to establish that the seized articles were in proper custody, in proper form and samples sent to the chemical analyst related to the seized articles.
13.21 In the cases of State of Rajasthan v. Chhaganlal, (2009)8 SCC 539 and Sukhdev Singh v. State of Haryana, AIR 2013 SC 953, the Apex court followed decision in the cases of [i] Karnail Singh [supra]; [ii] Darshan Singh v. State of Haryana in Criminal Appeal Nos.216 with 217 of 2009 decided on 02.09.2015 by the Apex Court; and [iii] Rajendra Singh v. State of Haryana in Criminal Appeal No.1051 of 2009 decided on 08.08.2011 and held that total non-compliance of the requirements of Section 42 was impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of NDPS Act.
13.22 In the case of State Through Intelligence Officer Narcotics Control Bureau v. Mustaq Ahmed Etc., 2015 JX(SC) 802 in relation to cannabis plant and cannabis, the aspect about quantity was considered in the context of definitions contained in Section 2[iii] of the Act and punishment prescribed therein.
13.23 In case of Yasihey Yobin & Anr. vs. Department of Customs, Shillong, 2014 (13) SCC 344, in which the Apex Court was considering Section 42 of the Act in the backdrop of Page 31 of 47 R/CR.A/797/2012 CAV JUDGMENT search made by the Gazetted Officer from the residence of accused no.1 and by considering law laid down in the case of Prabhulal (supra), Satrohan (supra), Abdul Rashid (supra), Balbir Singh (supra), Baldev Singh (supra), it was held that such mandatory compliance of Section 42 is not necessary in a case where Gazetted Officer is a member of searching party. However, In Yasihey Yobin (supra), the Apex Court had not referred to the decision of the Constitution Bench on the interpretation of Section 42 of the NDPS Act in the case of Karnail Singh (supra).
13.24 That in the context of law laid down by the Apex Court, as above, especially with regard to Sections 42, 50 and 57 of the NDPS Act, we find that the NCB has examined Mr.K.R.Parate, at Exh.25, who was serving as Intelligence Officer, NCB, Ahmedabad, on deputation and his immediate superior was Zonal Officer, Mr.Hariom Gandhi, who was examined at Exh.49. As per the testimonies of Mr.K.R.Parate, around 6.30 a.m. on 19.4.2012, a secret information was received about accused Haiderbeg Mirza would arrive with contraband charas in dark brown bag in S.T.bus and typed information in this regard was handed over to superior officer and it is produced on record at Exh.26. Pursuant to the information so received, the contraband was seized and due to movement of vehicles and public at the place of seizure, decision was taken to carry out the procedure at the office of NCB and consent of panchas as well as accused was obtained. Even further testimonies of these witness reveal that the accused was informed about procedure to be followed of Section 50 of the Act and his right to be searched in presence of a Gazetted Officer or Magistrate and with consent of the Page 32 of 47 R/CR.A/797/2012 CAV JUDGMENT accused, this witness being a Gazetted Officer carried out search and seized the documents. Even a report under Section 57 was submitted to superior officer on 21.4.2012, the same bears signature of superior officer, Exh.30. The details of call record, Exh.31 and 32, and also complaint filed against the accused and muddamal deposited before the Court and godown register vide Exh.38 an 20 respectively and at the end the accused was identified in the Court.
13.25 Therefore, it transpires that information received by Mr.K.R.Parate was duly typed and was reduced in writing as provided under Section 41 (2) (i) of the Act. At the same time, questions were put to the accused in Hindi and later on translated into Gujarati. The above requirement of Section 42 (2) (i) of the Act is in consonance with the law laid down by the Apex Court in the case of Karnail Singh (supra). Likewise, keeping in mind the provisions of Section 50, Mr.Parate himself was a Gazetted Officer and has inquired about the right of the accused to be searched in presence of the Gazetted Officer or before a Magistrate is also borne out from the record, which satisfied the criteria laid down in the case of Vijaysinh Chandubhai Jadeja (supra).
14. In the context of law, as above, as held by the Apex Court, particularly in the case of Karnail Singh (supra), we find testimonies of PW-7, complainant, Mr.J.M.Yadav, PSI at Exh.66, who in his deposition said about the date and time about receiving secret information regarding three persons to hand over huge quantity of ganja to other two persons at Prince Hotel near Ahmedabad-Vadodara Highway and description contained clothes of these persons. That such Page 33 of 47 R/CR.A/797/2012 CAV JUDGMENT information was given in writing to Mr.P.G.Waghela, PW-12, and thereafter raid was planned and panchas were called. Pursuant to that, a surveillance was arranged around 4.45 p.m. of 16.9.2009 and on arrival of three persons, who came from Ahmedabad-Vadodara highway with bag and stood nearby an ATM center, out of three persons two persons handed over two parcels to other two persons. Detailed procedure was followed by PI, Mr.Waghela, about personal search and resolution was drawn under Section 42 of the NDPS Act and copies were handed over to them. Even procedure under Section 50 of the NDPS Act that need of search in presence of Magistrate or Gazetted Officer was carried out and all the five accused had agreed to undergo search in presence of PI, Mr.Waghela, PW-
16. Panchnama, no doubt was drawn in room no.102 of the hotel and yadi was sent, in view of sunset by PW-16 to the Police Commissioner. Even FSL officer PW-13, Mr.Hingarajiya was summoned, who arrived with FSL kit and weightman, Mr.Ranjitsinh Rathod, PW-9, after weighing muddamal samples A to F were packed and marked. The record reveals information written by the complainant, PW-7, and sent a yadi to PW-16 vide Exh.67 bear date 16.9.2009 and the time is 15.10 and it was received by the PI, Mr.Waghela, after five minutes. That extensive testimonies of PW-16, vide Exh.95 establishes the fact of taking complaint by PW-7, Mr.J.M.Yadav, PSI and Mr.P.G.Waghela, PW-16 being PI himself is a gazetted officer and, in such a case, compliance of Sections 42 and 50 as held in the case of Karnail Singh and Vijaysinh Jadeja (supra) stands complied with.
15. Likewise, so far as seizure memo is concerned, above PW-16 has produced vide Exh.96 to 100 in his deposition and Page 34 of 47 R/CR.A/797/2012 CAV JUDGMENT yadi under Section 57 by him to the Crime Branch in which details of the accused persons were given along with muddamal vide Exh.101. Other police personnels viz. PW-4, PW-3 even Head Constable Mr.Hargovind Rajput and police constable Vijaysinh also confirmed about receiving secret information by the complainant, PW-7, Mr.J.M.Yadav. Panch witness, PW-1 vide Exh.19 was called at the police station, Crime Branch, where a primary panchnama was drawn and, thereafter, they had started in government vehicle, reached at the place of seizure of muddamal where raid was carried out and raiding party apprehended five accused persons and taken them to Prince Hotel. This panch has supported the part of case of prosecution, though declared hostile. He has admitted the fact that five accused persons were found in possession of ganja and names of such persons, likewise PW-2, panch Mr.A.S.Chorasiya, vide Exh.43 admitted his signature in a panchnama of raid Exh.25.
16. One of the important witnesses, who was examined was PW-13, Mr.Hingarajiya, FSL officer, Exh.87 received a yadi from PW-16, PI, Mr.P.G.Waghela from Crime Branch and reached at a place in government vehicle and also at Prince Hotel. Upon opening six bags, marked as "A" to "F", substance contained therein was analyzed and a positive test of cannabis was found and he opined accordingly. Even scientific officer of FSL, Gandhinagar, Mr.J.F.Mansuri, PW-14, also stated that upon analysis of substance of each parcel, positive report for ganja had come on record. Another FSL Officer, PW-15, Ms.Tejalben Shah, who also analyzed samples marked A/1 to F/1, six parcels had cannabis and substance was ganja as per her botanical examination.
Page 35 of 47 R/CR.A/797/2012 CAV JUDGMENT17. Learned trial Judge has extensively considered documentary as well as oral evidence and in para 91 upto para 100 discussed the evidence and found as under:-
"91. By the deposition of PW-1 Exh.19 panch Rajesh Bholanath, the fact is supported that they had went at the place of the Batmi with police. At there two persons were seated near the ATM of State Bank of India. Three persons were came and had exchanged talk with the two persons seated near the ATM. The raiding staff had cordoned the said five persons and they were carried on in the room of nearby Prince Hotel for search. At there search of the said five persons was executed and some substance in the plastic bags were found in the three bags of the said five persons and the substance was a botanical substance having a smell and was appear primarily as a Ganja. The panch has also stated that a weightman and FSL officer was called at the place and FSL Officer had examined the sample of the substance and had opined about the Ganja. This panch has also identified his signature as a panch No.1 in panchnama and other relevant documents. This panch has identified his signature in Exhs.26 to 31, 32, 33 and other such relevant papers.
92. Referring to the deposition PW-3 Police Constable Vijaysinh Dalpatsinh at Exh.44, it appears that this witness has also supported the fact about the receiving of the secret Batmi by PSI Shri Yadav and about the arranging of the raid by PI Shri Vaghela and such other facts in his deposition. This witness was member of the raiding party and has stated facts in detail about the arranging of the raid and about the execution of the raid and about the procedure done at the time of the raid. This witness has also supported the fact that raid was arranged near ATM of State Bank of India, Silver Complex at CTM Cross Road. This witness has also supported the fact about the two persons were seated at near the ATM and three persons were came and they had exchanged talk with the said two persons and at that time as per the instruction of PI Shri Vaghela all five persons were cardoned. This witness has also supported the fact that mark A to F plastic packets were collected from the five accused persons. This witness has also stated details about the signature of the weightman and FSL officer Shri Hinglajiya and all other facts in his deposition. This witness has also supported the fact about the taking of samples - testing sample and reserve sample mark A/1 to F/1 and mark A/2 to F/2 and about the packing and sealing of the samples and muddamal. By the deposition of this witness the case of the prosecution is supported.Page 36 of 47 R/CR.A/797/2012 CAV JUDGMENT
93. Referring to the cross-examination of PSI Shri Yadav at Exh.62 it appears that PSI Shri Yadav has admitted in his cross-examination that he had not made note about the secret Batmi in the Batmi register. Shri Yadav has further admitted that he has not making yadi Exh.67 by making carbon copy of the same and has explained that he had prepared a xerox copy of the said yadi. It is true that PSI Shri Yadav has not entered any entry in the Batmi register about the receiving of the secret Batmi in this case. But in this case PSI Shri Yadav had informed about the secret Batmi to PI Shri Vaghela as per the written yadi Exh.67. PI Shri Vaghela had informed about it to his higher officer Assistant Commissioner of Police as per gupt yadi Exh.103 at immediately after receiving the yadi Exh.67. The entry is also entered in the station diary as per Exh.97. PI Shri Vaghela had after receiving about the secret Batmi immediately informed the police persons about the secret Batmi and has arranged raid at the place of the Batmi. Referring to the fact it appears that there is no technical defect and it appears that secret Batmi was received by PSI Shri Yadav and he had informed the same to PI Shri Vaghela and PI Shri Vaghela had informed about the same to higher officer Assistant Commissioner, Crime Branch and immediately raid was arranged and the fact about the secret Batmi and fact of the prosecution is appearing to be reliable and believable.
94. Referring to the cross-examination of PSI Shri Yadav and PI Shri Vaghela and other police witnesses also appears that they have stated the same fact as per the chief examination and in cross-examination also no adverse fact is brought in the record. Referring to the cross-examination of the witnesses also it did not appear that the raid was not arranged or no muddamal was seized from the accused persons. Referring to the cross-examination of the witnesses also the case of the prosecution is somewhat supported.
95. Referring to the provisions of Section 42 of the NDPS Act when any police officer superior in rank to a peon, sweeper or constable receives a secret Batmi about the Narcotic Drugs or Psychotropic Substances at that time he is required to inform the same to his immediate superior officer within 72 hours. In this case PSI Shri Yadav has reduced the information in writing and he has immediately sent the said yadi Exh.67 to PI Shri Vaghela and PI Shri Vaghela has also informed about the secret Batmi to the superior officer Assistant Commissioner, Crime Branch as per Exh.103 - written yadi. Therefore in this case the provisions of Section 42 has been complied about the receiving of the secret Batmi.Page 37 of 47 R/CR.A/797/2012 CAV JUDGMENT
96. Referring to provisions of sub-section 42(1), proviso, when the search and seizure procedure is executed after the sunset time at that time the searching officer is required to record grounds thereof and required to send a copy thereof to his immediate superior officer within 72 hours. In this case the raid was executed during the day hours and during the procedure time of sunset was passed and therefore PI Shri Vaghela has prepared report u/s 42(1), proviso as per Exh.102 at the place and has sent the said report to Assistant Commissioner, Crime Branch. Therefore in this case the provisions are complied.
97. In this case the search is executed in presence of PI Shri Vaghela and in presence of other police persons and panchas. PI Shri Vaghela is a gazeted officer and therefore in this case the provisions of Sections 50 and 42 have been complied with. Otherwise also in this case PI Shri Vaghela had asked the accused persons about their right to execute the search in presence of the Magistrate or in presence of the gazetted officer and the accused had agreed to have search in presence of PI Shri Vaghela and in presence of Shri Vaghela search and seizure was executed. PI Shri Vaghela had prepared a resolution u/s 50 and 42 and they have been produced at Exh.107 and 108 in this case. The copy of the said resolutions have been received by the accused. There are signatures of the accused in them. These resolution is signed by the panchas. Panchas have also stated in their deposition that in the resolution there are their signatures. Therefore in this case the search and seizure is performed as provided in Section 50 and 42 of the NDPS Act.
98. The learned advocate for the accused has contended in written arguments that referring to the prosecution evidence it appears that muddamal and samples were not kept in safe and proper custody and there was all possibility of tampering with the contents of the sample. It is further submitted that how the computerized slip came to be affixed on the sample is not made clear by the prosecution and it has remained a mystery. This type of evidence of prosecution itself creates doubt regarding the truth of the prosecution story.
99. Referring to the above discussed evidence it appears clearly that at the place of the raid muddamal Ganja was recovered from the accused as per plastic packets mark A to F. It further appears that at the place as per the instructions of FSL Officer Shri Hinglajiya one testing sample and one reserve sample each for 100 grams were taken from the each quantity of Ganja (from each packet mark A to F) and testing samples were given A/1 to F/1 (6 packets) and reserve samples were Page 38 of 47 R/CR.A/797/2012 CAV JUDGMENT given mark A/2 to F/2 (6 packets). The fact is further produced that each were packed and sealed and seal of PI, Crime Branch was applied. Seal was carried on with them by the raiding party as per yadi Exh.76. Seal has been returned to the police station as per yadi Exh.104 after completion of the raid.
100. The fact is further produced in the evidence of the prosecution witnesses that after completion of the raid PI Shri Vaghela had produced panchnama, arrest memos and muddamal in the Crime Branch Police Station and PW-12 PSO Shri Bihola had prepared a muddamal yadi. Thereafter the said muddamal was handed over to Crime Writer Head PW-10 ASI Shri Adesinh S. Vasava. The fact is further produced that on receiving of the muddamal PW-10 Shri Adesinh S. Vasava had verified the muddamal and had kept in the safe custody. The fact is also produced that on the next day on 17.09.2009 Shri Adesinh Vasava had handed over six parcels of testing samples mark A/1 to F/1 in a sealed condition to PW-4 Head Constable Hargovindsinh Kalyansinh to supply the same to FSL Office. The fact is also produced that PW-4 Shri Hargovindsinh Kalyansinh had carried on muddamal A/1 to F/1 (6 packets) in sealed position and had supplied them to the FSL, Gandhinagar with muddamal Ravangi note Exh.47 and FSL, Gandhinagar had received the said six parcels - packets in sealed condition as per receipt letter of the FSL Exh.48. It further appears that thereafter in FSL muddamal has been examined. It further appears that FSL had also found seal on the muddamal parcels and there is no defect appearing in procedure adopted by the prosecution. There is no any whisper of fact that there was a tampering of muddamal."
18. The aforesaid reveals total compliance of provisions of Section 42 (1), 50 and 57 of the NDPS Act and also establish the fact of seizure, sealing, drawing of sample, sending samples to FSL, receiving the same by concerned official of FSL and movement of muddamal remain untampered with.
19. That appreciation of evidence with regard to purity or that the prosecution has failed to bring the evidence regarding percentage of THC, if any, found in the alleged seized contraband-ganja and no case is made out that the substance Page 39 of 47 R/CR.A/797/2012 CAV JUDGMENT seized was not ganja as defined under Section 2(ii) (b) of the NDPS Act, learned trial Judge relied on evidence of PW-1, Scientific Officer and Assistant Chemical Examiner, FSL and also PW-15 another Scientific Officer and Assistant Chemical Examiner and held as under:-
"105. In this case the prosecution has produced analysis report of FSL at Exh.91 which has been given by PW-14 Shri J.F. Mansuri, Scientific Officer and Assistant Chemical Examiner, FSL, Gandhinagar. The prosecution has also examined Shri Mansuri at Exh.89 and Shri Mansuri has submitted details in his deposition about the analysis and analysis report. Referring to the deposition of Shri Mansuri and report Exh.91 it is very clear that in analysis a positive report have been find for Ganja and opinion is given in report that the substance was a Ganja as defined in NDPS Act as per the physical, chemical and botanical examination of the substance. The prosecution has also examined PW-15 Tejalben D. Shah, Scientific Officer and Assistant Chemical Examiner, FSL, Gandhinagar at Exh.94 and she has also stated the facts in detail in her deposition and has explained the fact stated in the opinion Exh.92. In analysis report Exh.92 Smt. T.D. Shah has also mentioned details about the botanical examination performed by her and has finally given opinion that the substance was a Ganja.
106. Therefore considering the deposition of PW-14 and PW- 15 and analysis report Exh.91 & 92 it is abundantly clear that the substance seized from the accused was a Ganja as defined in NDPS Act. Therefore arguments advanced by the learned advocate for the accused cannot be accepted."
20. Regarding purity test for the contraband charas, the Apex Court had an occasion to consider the case in the context of definition under Section 2 (iii) which defines cannabis (hemp) in the decision viz. State through Intelligence Officer, Narcotics Control Bureau v. Mushtaq Ahmed and Others, reported in (2016) 1 SCC 315 wherein also quantity of contraband charas (derivative of cannabis) as defined under Section 2 (iii) of the Act and punishment prescribed under Page 40 of 47 R/CR.A/797/2012 CAV JUDGMENT Section 20 (b) (ii) (C) of the Act came to be considered. In the above decision, accused were held guilty of offence punishable under Section 20 (b) (ii) (C) of the NDPS Act, in appeal the High Court of State of Jammu and Kashmir converted such conviction under Section 20 (b) (iii) (B) of the NDPS Act and restricted the period of custody to the period already undergone by the accused. Finally the Apex Court quashed and set aside such conversion of conviction by the High Court and restored the conviction under Section 20 (b) (ii) (C) of the Act and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs.1 Lakh, in default to undergo further rigorous imprisonment for a period of one year.
20.1 In the above decision, the Apex Court also considered the question of quantity vis-a-vis purity of contraband and distinguished the law laid down in the case of E. Michael Raj (supra) and also in the case of Amarsingh Ramjibhai Barot v. State of Gujarat (2005) 7 SCC 550, which was prior in time and that the substance viz. contraband was a manufactured drug as defined in Section 2 (xi) of the NDPS Act. The Apex Court in the case of Mushtaq Ahmad (supra) considered the case of Harjit Singh v. State of Punjab, [(2011) 4 SCC 441] and in paragraph 26 set out facts of seizure of contraband THC viz. Tetra Hydro Cannabinol and for the sake of convenience, paragraphs 26, 27 and 28 are reproduced herein below:-
"26. In the present case, the contraband article that has been seized is "charas" and the dictionary clause clearly states that it can be crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. The definition also indicates that any mixture with or without any neutral material of any of the Page 41 of 47 R/CR.A/797/2012 CAV JUDGMENT cannabis or any drink prepared therefrom. The reference in Section 2(iii)(c) refers to any mixture which has a further reference to charas, which states crude or purified. The chemical name for charas and hashish is "extracts and tinctures of cannabis". It finds mention at Entry No.23 of the Notification. Serial No.150 of the Notification deals with "tetrahydrocannababinol" having a long list.
27. Regard being had to the aforesaid factual score, reference to a two-Judge Bench decision in Harjit Singh v. State of Punjab6, would be apt. In the said case 7.10 kgs. of opium was ceased from the accused. A contention was raised before this Court that the opium recovered from the appellant weighing 7.10 kgs. contained 0.8% morphine, that is, 56.96 gms. and hence, the quantity was below the commercial quantity. The two-Judge Bench referred to the pronouncement in E. Micheal Raj (supra) and referred to various Entries in the notification, namely, Entry 77 that deals with morphine, Entry 92 that deals with opium and Entry 93 that deals with opium derivatives. The Court posed the question whether the case would fall under Entry 92 or Entry 93 or any other Entry. The Court referred to the definition of opium under the NDPS Act, the chemical analysis made by the Forensic Science Laboratory, took note of the percentage of morphine, the amendment brought in 2001 and came to hold thus:-
"21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of imposition of punishment if the quantity of morphine in opium Page 42 of 47 R/CR.A/797/2012 CAV JUDGMENT is taken as a decisive factor, Entry 92 becomes totally redundant.
22. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue. More so, opium derivatives have to be dealt with under Entry 93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. Entry 92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity."
27. In the said case, the judgment referred in E. Micheal Raj (supra) was distinguished by stating thus:-
"The judgment in E. Micheal Raj has dealt with heroin i.e. diacetylmorphine which is an "opium derivative" within the meaning of the term as defined in Section 2(xvi) of the NDPS Act and therefore, a "manufactured drug" within the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case."
Eventually, in paragraph 25 the Court held thus:-
"25. The notification applicable herein specifies small and commercial quantities of various narcotic drugs and psychotropic substances for each contraband material. Entry 56 deals with heroin, Entry 77 deals with morphine, Entry 92 deals with opium, Entry 93 deals with opium derivatives and so on and so forth. Therefore, the notification also makes a distinction not only between opium and morphine but also between opium and opium derivatives. Undoubtedly, morphine is one of the derivatives of the opium. Thus, the requirement under the law is first to identify and classify the recovered substance and then to find out under what entry it is required to be dealt with. If it is opium as defined in clause (a) of Section 2(xv) then the percentage of morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of a mixture as Page 43 of 47 R/CR.A/797/2012 CAV JUDGMENT specified in clause (b) of Section 2(xv) of the NDPS Act, that the quantity of morphine contents becomes relevant."
20.2 As aforesaid, the Apex Court noticed that decision in case of E.Michael Raj (supra) was distinguished which dealt with heroine viz. diacetylmorphin, which is an opium derivative and would fall within the meaning of Section 2 (xvi) of the Act and, therefore, it was a manufactured drug under Section 2 (xi) (a) of the NDPS Act. Ratio in the case of E.Michael Raj was not found relevant by the Bench of the Apex Court in the case of Harjit Singh's case, in which the material recovered from the appellant-accused was opium and it was not a mixture of opium with any other neutral substance. That the substance recovered was not for preparation to produce any new substance from the said coagulated juice and, therefore, it was found that the issue in Harijitsingh's case was under Clause (a) of Section 2 (xv) of the NDPS Act.
21. No doubt, in the case of Mushtaq Ahmad (supra) the Apex Court even noticed that percentage of THC found in the contraband article, if considered in the context of entry 190, the commercial quantity was 50 gram and, therefore also, it was held that the view expressed by the High Court was not correct. Thus, judged from any score, view expressed by the High Court was not correct and the quantity of charas seized was rightly held by the trial Court as commercial quantity and conviction recorded by the trial Court under Section 20 (b) (ii) (C) of the Act was found just and proper.
22. In the facts of this case, if the definition of "Cannabis (hemp)" is seen and considered, Section 2 (iii) (c) provide for any mixture with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom, and Page 44 of 47 R/CR.A/797/2012 CAV JUDGMENT item no.239 of the table of notification dated 19.10.2011 contained "any mixture or preparation with or without a neutral material of any of the above drugs" and Note 4 introduced by amendment carried out vide notification dated 18.11.2009 S.O. 2941 (E) specifically provide that quantity shown in column 5 and 6 of the Table of notification dated 29.10.2001 relating to respective drugs shown in column 2 shall apply to entire mixture or any solution or anyone or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs including salts of esters, ethers and isomers, wherever existence for such substance is possible and not just its pure drug content. The law laid down in Mushtaq Ahmad (supra) will apply in case of 'Ganja' as defined under Section 2
(iii) (b) of the Act as item 55 of Notification dated 19.10.2001 prescribed 20 kg. as commercial quantity.
23. That very notification and amendment introduced on 18.11.2009 was again a subject matter of challenge in the case of Hira Singh and Another v. Union of India reported in (2017) 8 SCC 162 and again the Apex Court referred to the decision of State v. Mushtaq Ahmed (supra), Amarsingh Ramjibhai (supra), E.Michael Raj (supra) and other such decisions and referred the issue for an authoritative pronouncement on the matter to a Three Judge Bench. Para 12 of the referral order reads as under:-
"12. The three Judges Bench may have to consider, amongst others, the following questions:
12.1 Whether the decision of this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry no.239 and Note 2 (two) of the notification dated 19.10.2001 as also the interplay of the other provisions of the Act with Section 21? 12.2 Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an Page 45 of 47 R/CR.A/797/2012 CAV JUDGMENT offence and more particularly for awarding punishment? 12.3 Does the Act permit the Central Government to resort to such dispensation?
12.4 Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
12.5 Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug?"
24. Therefore, considering the totality of the evidence on record and particularly conviction of the accused recorded under Section 29 of the NDPS Act, seizure of contraband qua individual will have no role in considering the aspect from the angle of quantity lesser than commercial as rightly held by learned trial Judge but at the same time, punishment prescribed under Section 20 (b) (ii) (C) for commercial quantity in the case of cannabis would be rigorous imprisonment for a term not less than ten years and in view of proved recovery of 'Ganja' of 42 kilograms, to that extent only we find to interfere with the order of conviction and punishment both. Therefore, conviction of accused/respondent is altered from Section 20 (b)
(ii) (B) to Section 20 (b) (ii) (C) of the NDPS Act and the sentence "for a period of ten years" to be enhanced "for a term not less than ten years" and keeping fine, default sentence etc. unaltered.
25. In view of discussion of evidence on record and the findings, reasons and conclusions drawn by learned trial Judge about guilt of the accused as proved by prosecution beyond reasonable doubt, we are in agreement with it. Therefore, Criminal Appeal No.797 of 2012 filed by the accused against their conviction is dismissed.
Page 46 of 47 R/CR.A/797/2012 CAV JUDGMENT26. So far as Criminal Appeal No.1073 of 2012 filed by the State of Gujarat under Section 377 of the Cr.P.C. for enhancement of sentence is concerned, though findings are recorded by learned trial Judge in paragraph 8 of the order portion of the judgment that the accused have committed offence under Section 20 (b) (ii) (C) read with Section 29 of the NDPS Act and even punishment prescribed for such offence is also recorded but in paragraph 12 of operative order, learned trial Judge has referred to provisions of Section 20 (b) (ii) (B) read with Section 29 of the NDPS Act and sentenced the accused for rigorous imprisonment for a period of ten years and fine of Rs.1 Lacs and in default of payment of fine, further rigorous imprisonment for a period of six months. The same is altered and the accused are convicted under Section 20 (b) (ii) (C) read with Section 29 of the NDPS Act and they are ordered to undergo rigorous imprisonment for a term not less than ten years instead of sentence for a period of ten years. However, fine and default sentence are maintained as it is. Accordingly, impugned judgment and order of conviction and sentence dated 27.4.2012 passed by learned Additional Sessions Judge, City Sessions Court, Ahmedabad, in Sessions Case No.410 of 2009 is modified. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to them. Bail bond, if any, of the accused stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.
(ANANT S. DAVE, J) (B.N. KARIA, J) R.S. MALEK Page 47 of 47