Gujarat High Court
Sunilkumar vs State on 19 December, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
CR.A/1211/2006 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1211 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE PARESH UPADHYAY
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SUNILKUMAR
VEDPALSINH ASHARAM JAT - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Appellant(s) : 1,
MR KL PANDYA Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE PARESH UPADHYAY
Date
: 19/12/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgment and order passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No. 7, Vadodara (hereinafter referred to as the 'Sessions Judge') in NDPS Case No. 7/2005, whereby, the learned Special Judge has convicted the appellant - original accused no. 1 (hereinafter to as the "A-1") for the offence under section 8(c) read with section 20(b)(c) of NDPS Act, and has imposed sentence of 10 years R/I with fine of Rs. 100,000/- and 2 ½ years imprisonment for default of payment of fine.
2. As per the prosecution case, complaint Exh. 20 was filed on 6.4.2005 for the offence under the NDPS Act, stating that when the checking and patrolling was being made at Dhavat Chokadi, National Highway No. 8, Near Hotel Giriraj Kathiavadi, one truck was standing towards its frontage at Surat side. On further enquiry, it was found that four persons including the driver, were sitting in the driver's cabin and they were A-1 to A-4. Upon further enquiry, the driver Sunilkumar informed that potato were there in the truck, but as the size was abnormally high, a doubt was created and upon further enquiry, the complainant was informed that bags containing "Bhang" were there in addition to the potato. Thereafter, the complainant identified himself and panchas and informed them for the search to be carried out and the accused were also informed that if they were desirous to have the search in presence of any higher officer or the Magistrate, necessary arrangements can be made for same. Since it was so desired by the accused, a request was made to the Executive Magistrate, Karjan by sending intimation and the Executive Magistrate thereafter came there and search had taken place and it was found that there were 148 bags containing 3750 kg of cannabis plants ( popularly known as 'ganja' ). Samples were taken and sealed and remaining bags were also seized. Thereafter, the mater was further investigated and a complaint was filed before the learned Judge, and thereafter, charge-sheet was filed. The learned Judge framed the charge against all the accused namely A-1 to A-5 for the offence under section 8(c), 20(b)(c) and 29(1) of the NDPS Act.
3. In order to prove the guilt of the accused, the prosecution has examined 10 witnesses and led oral evidence. The prosecution also produced 15 documentary evidence in support of its case. The details of oral as well as documentary evidences are narrated by the learned Sessions Judge at para-7 of the impugned judgment. The learned Judge, thereafter, recorded the further statement of the accused under sec. 313 of CrPC, wherein, the accused denied the evidence against them and stated that a false case is filed against them. The learned Judge, thereafter, heard the prosecution as well as the defence, and ultimately, found A-1 guilty for the offence under sec. 8(c) read with sec. (b)(c) of NDPS Act and also found that the case is not proved against A-2 to A-5. The learned Judge convicted A-1, as stated above and imposed sentence and acquitted A-2 to A-5. Under the circumstances, the present appeal before this Court.
4. We have heard Mr. NK Majmudar learned counsel appearing for the appellant and Mr. KL Pandya learned APP for the State. Learned counsel appearing for both the sides, have taken us through the entire evidence oral as well as documentary evidence and we have also gone through the judgment and reasons recorded by the learned Sessions Judge.
5. PW-1 Ranjitsinh Bahadursinh Rana Exh. 19 has completely supported the case of the prosecution. He, in his testimony has stated about the checking made by him while on patrolling and the truck found in doubtful condition and further enquiry made by him and the information supplied for containing bags of "bhang". Thereafter, further procedure was followed for search and seizure in presence of the Executive Magistrate since it was so insisted by the accused. He has also submitted that upon the test, it was found that they were not 'bhang' but cannabis plant and the total weight of the prohibited substance was 3750 kg., estimating the price of Rs. 2,23,57,920/- calculating at the rate of Rs. 3000/- per kg. PW-2 Mahavirsinh Udesinh Ataliya Exh. 33, who is panch for the panchnama Exh.27 of search, though turned hostile, has admitted his signature and he has also stated that the bags containing cannabis plant (ganja) were unloaded from the truck and has also confirmed that the other panch was PW-3 Narendrasinh Chandrasinh Raj Exh. 34. He has also confirmed that the Magistrate had come at that time. PW-3 Narendrasinh Chandrasinh Raj Exh. 34 has admitted his signature. The contents of the panchnamna has been proved by the evidence of I.O. PW-10 Jagdishchandra Ranchhodbhai Desai Exh. 50. The weighing of cannabis plant at Rupal Traders has been proved by the evidence of PW-6 Yogeshkumar Maganbhai Exh. 38, and as per his testimony, there were total 148 bags and the total weight found was of 3726.320 kg. The prosecution has examined scientific officer PW-7 Jahanmahmad Fakirbhai Mansuri Exh. 41 as well as Tejal Dilipbhai Shah Exh. 45 to support the FSL report that the cannabis plants were found in all the samples which were sent to the FSL. The FSL report is also produced at Exh. 52. In this manner, the prohibited substance of cannabis plants in all 148 bags lying inside the truck is proved. The testimony of PW-10 Jagdishchandra Ranchhodbhai Desai Exh. 50, who has conducted the investigation, supported the case of the prosecution. In the cross-examination of any of the above referred witnesses, the defence has not been able to bring about any material contradiction which may frustrate the case of the prosecution for proving the possession of 148 bags of cannabis plants, as per the charge, inside the truck in which A-1 was the driver. The another relevant aspect is that licence of driver A-1 was found from the truck and the papers of bilti (receipt for transportation) of potato was also found and has been duly proved.
6. Learned counsel for the appellant raised the first contention that there was no conscious possession of A-1 only as believed by the learned Judge since all the accused were found sitting inside the cabin. He attempted to contend that the information which is stated to have been supplied by A-1 about 'ganja' lying inside together with potato was not duly proved. He, therefore, submitted that the learned Judge has committed error in giving benefit to A-2 to A-5 and for finding A-1 guilty for the offence.
7. As such the said aspect has been dealt with by the learned Sessions Judge at para-31 and 32 of the impugned judgment, wherein, the learned Sessions judge has found that as per the deposition of the complainant, the licence of A-1 was found from the truck and the information supplied by A-1 to the police officer of "Bhang" inside the bags lying in the truck shows that A-1 was in knowledge of the said substance and the material. It is further found by the learned Judge that the burden as per Section 35 of the NDPS Act is upon the accused to prove otherwise, and therefore, the learned Judge has found that the prohibited psychotropic substance was in conscious possession of A-1, whereas, for A-2 to A-5 the learned Judge found that A-2 is real brother of A-1, and A-3 & A-4 whether were in knowledge of 'Bhang' lying inside the bags found in the truck or not, is not proved. The learned Judge further found that A-5 has been arrested only because A-1 to A-4 stated his name. Under the circumstances, the learned Judge found that there is no satisfactory evidence for conscious possession of A-2, A-3 and A-4 nor the involvement of A-5 is proved for the alleged offence, and therefore, the learned Judge has only convicted A-1 and has acquitted A-2 to A-5.
8. We have also considered the evidence of the complaint once again at Exh. 20 and the said complaint does refer the information supplied by A-1 that the truck contained potato and upon further enquiry, A-1 informed to the officer that the bags other than containing potato, are bags of 'bhang'. The driver is supposed to be in a normal course in-charge of the truck, and therefore, the possession of the prohibited psychotropic substance is found and duly proved of A-1. The aforesaid aspect is coupled with the evidence that the information about bags containing 'bhang' together with the potato inside the truck was given by A-1. Further, the driving licence of A-1 is found and the possession of bilti for potato is also found. Under these circumstances, it can be said that the prosecution has been able to discharge the burden as required under section 35 of the NDPS Act to attract the presumption of conscious possession. If the defence of the accused was that he had no such mental state with respect to the act, then it was for him to discharge such burden. In our view, such burden could be discharged either by bringing about the truth contrary to the statement made in the examination-in-chief of the witness concerned or by examining the defence witness. Neither has come on record in the present case. Attempt to rely upon the decision of the Apex Court in the case of Bhola Singh vs. State of Punjab, reported in (2011) 11 SCC 653, is illfounded because, it was found by the Apex Court in the said case that the initial burden to prove that the appellant had a knowledge that the vehicle was being used for transporting narcotic, was not discharged. Such are not the fact situation in the present case. Therefore, the said decision is of no help to the appellant. In the case of Ram Singh vs. Central Bureau of Narcotics, reported in (2011)11 SCC 347, the servant of the hotel was found by the High Court as in conscious possession, whereas, as per the confessional statement, the opium was being brought from the house to the hotel, where, it was being sold in tablets to the truck drivers, and therefore, the Apex Court observed that the servant of a hotel cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control. In the present case, A-1 was driver of the truck and was in-charge of the truck and the truck was in his absolute control, and therefore, the possession could be, if any, was of A-1. In view of the aforesaid peculiar circumstances and the possession of the bilti for the goods loaded inside the truck, i.e. potato and the information supplied by A-1 to the Officer that the additional bags contained 'bhang' together with the bags of potato. The said decision of the Apex Court is no help to the appellant.
9. Hence, we cannot accept the contention of the learned counsel for the appellant that the prosecution had not discharged the burden so as to attract the presumption for conscious possession. Presumption for culpable mental state as per section 35 of Act, once that burden was discharged, the burden would shift to the defence or the accused to prove otherwise, which, in our view, in the present case, has not been discharged. Such evidence is not available in the case of other accused. Further, even if, such contention of the appellant is examined to the extent that all A-1 to A-4 were found in the cabin of truck and all are similarly situated for the purpose of tracing the guilt, in our view, would not result into the situation of acquittal of the appellant. We do not find it proper further to observe on the said aspect since we are not hearing the appeal against the acquittal of A-2 to A-5 nor the State has preferred such appeal, but we do find that there was more evidence available against the appellant attributing the guilty for conscious possession of prohibited psychotropic substance. Under the circumstances, it is not possible to accept the contention that the learned Judge has committed error, as canvassed.
10. Learned counsel for the appellant next contended that the panchas for search and seizure, namely PW-2 Mahavirsinh Udesinh Ataliya Exh. 33 and PW-3 Narendrasinh Chandrasinh Raj Exh. 34 have turned to be hostile and have supported the case of the prosecution and, therefore, it was submitted that the reliance placed by the learned Sessions Judge upon the panchnama is erroneous and the benefit should go to the accused inasmuch as if the search and seizure is not proved in accordance with law, the case of the prosecution would be frustrated and the accused would be entitled to the benefits thereof.
11. It is not a matter where the panchas have not at all supported the case of the prosecution, on the contrary, in the earlier part of the examination-in-chief, witness Mahavirsinh Udesinh Ataliya PW-2 Exh.33 has stated that the bags of ganja were unloaded from the truck, and thereafter, the bags were checked and he had found that there was something like plants and his signature was taken, and together with him one another panch was Narendrasinh. He has also stated that during the panchnama, they were present. He has also stated that the Magistrate Saheb had come in their presence. The witness has turned hostile thereafter when he stated that since the police had stated that it was ganja, he learnt that it was a ganja. The another aspect is that both the witnesses PW-2 Exh. 33 and PW-3 Exh. 34 have admitted their signatures on the panchnama. The said testimony of both the panch witnesses to that extent supporting the case of the prosecution, as referred to hereinabove, is to be appreciated in light of the deposition of I.O. PW-10 Jagdishchandra Ranchhodbhai Desai Exh. 50 and the complainant PW-1 Ranjitsinh Bahadursinh Rana Exh. 19, who have supported the case of the prosecution and through their evidence, the contents of panchnama and, more particularly, the search, recovery of sample, seizure and preliminary test etc. are proved. There is further corroboration from the deposition of PW-5 Hasmukhbhai Melabhai Exh. 36, who had received the possession of muddamal and the evidence of Scientific Officer PW-7 Jahanmahmad Fakirbhai Mansuri Exh. 41 and PW-8 Tejal Dilipbhai Shah Exh. 45 with respect to all the samples sent for investigation, and cannabis plants found, and therefore, under the circumstances, it is not possible for us to accept the contention that merely because of panchas after giving evidence in part in examination-in-chief, have turned hostile, the case of the prosecution is frustrated. Hence, the contention cannot be accepted.
12. Learned counsel for the appellant has lastly contended that the search and seizure could not be said to be made in presence of the Executive Magistrate, since in his submission, the Executive Magistrate came late after half of the panchnama was already made, and therefore, it was submitted that the mandatory procedure was not followed.
13. The contention prima-facie appears to be attractive, but upon scrutiny, it appears from the perusal of the panchnama Exh. 27 that the officer himself, namely; Ranjitsinh Bahadursinh Rana was competent for effecting the search and seizure, therefore, he has started with the preliminary part of preparation of panchnama, but when it was put to the accused that they have a right for search to be made in presence of higher officer or the Magistrate, the accused, at that stage, shown their desire to have the search in the presence of Executive Magistrate and therefore at 13.15 hours intimation has been sent to the Executive Magistrate to remain present. The drawing of panchnama was kept in abeyance until the Executive Magistrate came there at 13.45 hours, and therefore, the action for preparation of preliminary part of the panchnama even as per the prosecution case was not made in presence of the Executive Magistrate, but after the Executive Magistrate arrived at, the actual search was effected and the panchnama was accordingly drawn at that stage. The specific timings have been recorded for the period of search from 13.45 hours to 23.30 hours dated 6.4.2005. When the actual search had taken place in presence of Executive Magistrate and the same is further supported by the testimony of the Executive Magistrate PW-4 Ranchhodbhai Shanabhai Solanki Exh. 35, it cannot be said that the Executive Magistrate had arrived at after the search or after starting of the actual drawing of panchnama for the search, as canvassed. As the said contention is without any merit and deserves to be rejected.
14. In view of the aforesaid observations and discussions, we find that the ultimate decision taken by the learned Judge for holding the A-1 - appellant herein guilty for the offence charged against him and the sentence imposed by the learned Judge by the impugned judgment and order does not deserve to be interfered with. Hence, the appeal being meritless, is hereby dismissed.
[JAYANT PATEL, J.] [PARESH UPADHYAY,J.] mandora/ Top