Gujarat High Court
Devabhai Arjanbhai Modhwadia vs State Of ... on 30 July, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/1991/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1991 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DEVABHAI ARJANBHAI MODHWADIA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR YOGESH G DEV, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 30/07/2015
CAV JUDGMENT
Heard learned advocate Mr. Yogesh G Dev for the appellant and Ld. APP Mr. KL Pandya for the respondent - State.
Page 1 of 15 R/CR.A/1991/2008 CAV JUDGMENT2 By impugned judgment and order dated 5/2/2008 rendered in Sessions Case No. 30/2007, Fast Track Court Judge cum Special Judge under the Narcotic Drugs and Psychotropic Substances Act [for short 'the NDPS Act'], Porbandar, has convicted the appellant under section 20 [b] of the NDPS Act and sentenced to undergo rigorous imprisonment [RI] for 10 years with fine of Rs.1 lac and in default of payment of fine, he has to undergo RI for one year. Such conviction is pursuant to the offence registered with Bagvadar Police Station as C.R. No. II 30/2007 wherein after investigation, charge-sheet was filed and appellant was tried in aforesaid Sessions Case.
3 The sum and substance of the prosecution case is to the effect that on 14/4/2007, P.S.I. Mr. Chavda of Bagvadar Police Station has received information that the present appellant is dealing with Charas in his house and, therefore, P.S.I. Mr. Chavda has conducted raid at the residence of the appellant, where he found 980 Grams of Charas having market price of Rs.19,600/-, for which he has drawn Panchnama, called for the report from the Forensic Science Laboratory [FSL] and on confirmation that the Muddamal recovered by him is contraband material and narcotic drug, namely Charas, he initiated Page 2 of 15 R/CR.A/1991/2008 CAV JUDGMENT inquiry and lodged FIR, which has resulted into conviction as recorded hereinabove.
4 The sum and substance of the defense by the appellant, both before the trial Court and this Court, is to the effect that there is no exclusive possession of the house of the appellant so far as contraband material is concerned, there is no positive evidence regarding ownership of the house or at-least it was not owned by him and information regarding ownership was not proper since it was called after four days and there is no reference or disclosure of house number in such information. Even number of packets is uncertain i.e., one or two, conduct of the accused and contradiction by panch witness and non-examination of second panch witness raise doubt in the prosecution evidence so as to confirm the conviction.
5 To scrutinize the effect of all such issues, we have to peruse the entire record, which is available in the form of paper book and includes all depositions of seven witnesses and 31 documentary evidence.
6 P.W. No. 1 Nathalal Gordhandas Ruparelexamined at exh. 9 is a person who has weighed the contraband material. He specifically supports Page 3 of 15 R/CR.A/1991/2008 CAV JUDGMENT the prosecution case disclosing that Jamadar of Visavada Outpost has called him to weigh the Charas found from the appellant's house, therefore, he reached with weighing machine where police and raiding party were present and then he weighed the contraband material found from the place and also weighed two samples of 12 Grams each. He identifies the certificate of recording of such weight and proves it at exh. 10 and also identifies the appellant before the Court. He also identifies the Muddamal article and samples weighed by him. Though he was cross-examined, the appellant could not rebut his evidence or prove his own innocence.
7 P.W. No. 2 - Arvindbhai NathalalRaichura examined at exh. 11 is Talati-cum-Mantri of Viasavada village. He confirms that he received a written Yadi from C.P.I., Ranavav, to ascertain the details regarding residential house of the appellant and its ownership. He confirms that after verifying the register of the Gram Panchayat, he has written letter dated 20/4/2007 on the letterhead of the Gram Panchayat to the C.P.I., Ranavav, that as per the register of the Panchayat, the house where appellant is residing in the village is owned and registered at entry no. 30 in the name of Deva Arjan and Ranmal Arjan and he proves that letter at exh. 13. During Page 4 of 15 R/CR.A/1991/2008 CAV JUDGMENT cross examination he admits that he has not written the house number in his letter dated 20/4/2007 and also admits that they have two residential houses in the village, but confirms that Deva Arjan is residing in such house since years together. He denies all other negative suggestions so as to prove that he has not acted in accordance with law or rules and without authority in issuing such certificate. However, though he was cross examined at length, the appellant could not rebut his evidence or prove anything in his favour. The cross examination of the witness, on the contrary, confirms that the appellant is residing in the same village and house for years together. The submission by the appellant that since house is jointly owned with Ranmal Arjan, it cannot be proved that Muddamal article was owned by him alone and thereby he should not be convicted unless it was proved that Muddamal was not owned by Ranmal, brother of the appellant. However, fact remains that Ranmal is absconding and is not available for trial and in any case, the house is jointly owned by both the brothers and house is found in possession and control of the appellant where he is residing and when contraband material is found from his house, the defense version has no substance that unless his brother is prosecuted, he cannot be held guilty.
Page 5 of 15 R/CR.A/1991/2008 CAV JUDGMENT 8 P.W. No. 3 - Vrujlal Hiralal Pabariexamined at exh. 15 is Panch witness of the recovery proceedings carried out by the Investigating Officer [IO] at the residence of the appellant from where contraband material is found. This panch witness is also supporting the case of the prosecution in toto and he narrated the entire story and activity carried out in his presence and by him during such raid in detail before the Court, wherein if we refer the material sentences only, he has specifically admitted that the police searched the house of Deva, during such search one packet of Charas was found which was recovered in his presence and slip was pasted on it with his signature for future identification. He also identifies the accused and his house at the relevant time and confirms that another panch witness Bhikhu Kantilal was with him throughout the proceedings and both of them signed slip together. Though he could not recollect that whether it was weighed in his presence or not. However, he identifies signatures of both the panch. Such witness was also cross examined at length wherein barring two statements when he has categorically supported the case of the prosecution, prima-facie it seems that there is clerical or typographical error in recording two statements which may help the Page 6 of 15 R/CR.A/1991/2008 CAV JUDGMENT defense. However, it is settled legal position that any statement in any document or evidence cannot be taken into consideration by separating it from the entire evidence on hand and, therefore, if there is a statement in such deposition that the witness has not dictated anything to the police and signed the Panchnama prepared by the police or that he has not seen any material or article at the time of raid, cannot be read separately from the entire evidence so as to give any benefit of doubt or clear acquittal to the appellant.
Whereas it is clear and obvious on scrutiny of entire deposition that in fact even while recording above two lines, the witness not only identifies his signature, but thereafter reconfirms the case of prosecution in para 11 of the cross examination in nut-shell, wherein it is categorically stated by him that in the house where raid was conducted, nobody except the appellant was present. Thereafter, again there are some admissions by the panch witness, but as aforesaid, it cannot be separated from the entire evidence and, therefore, though witness has been cross examined at length and though there are some admissions and contradictions, the appellant could not rebut the evidence of the witness or prove his innocence.
Page 7 of 15 R/CR.A/1991/2008 CAV JUDGMENT 9 P.W. No. 4 - Tamuben Bhikhabhai examinedat exh. 16 is P.S.O., who has registered the FIR and received Muddamal article. She supports the case of prosecution and identifies the sealed article as well as proves the relevant document and Muddamal article. She was cross examined at length, but being police personnel, she has deposed perfectly in confirmation of investigation and, therefore, appellant could not rebut her evidence or prove his innocence.
10 P.W. No. 5 - Salimbhai Dadabhai Zaveriexamined at exh. 18 is Assistant Sub Inspector of Bagvadar Police Station. He also supports and narrates the activities of investigation by him and how Muddamal was dealt with in his presence. He also identifies the Muddamal. At exhs. 19 and 20 necessary Muddamal registers are produced and proved by the witness. He was cross examined at length, but being police personnel, he has deposed perfectly in confirmation of investigation and, therefore, appellant could not rebut such evidence or prove his innocence.
11 P.W. No. 6 - Naranbhai Bhayabhai Chavdaexamined at exh. 21 is Police Sub Inspector, who has conducted the raid and lodged the FIR. He also explains in detail about the prosecution case and story of investigation and proves Page 8 of 15 R/CR.A/1991/2008 CAV JUDGMENT relevant documentary evidence regarding investigation activities carried out by him. He also identifies all relevant material. Being IO when he has conducted majority of investigation, he was cross examined at length with several suggestions, which have no base in the evidence except such cross examination regarding some gathering of several Sadhus in the village, complaint by some Sadhu against the appellant for misappropriation of Rs.1.5 lacs, recovery of some amount from the appellant by beating him and so on. However, such stories could not prove innocence of the appellant or any other fact which can either prove his innocence or at least create benefit of doubt in his favour. Defense has gone to the extent of suggesting that in fact at the time of raid, appellant was under lunatic effect and was unable to understand good or bad and he was undergoing treatment at Mental Hospital, Jamnagar. Though such an attempt was made to get benefit of exemption or relaxation either in conviction or otherwise, when IO has denied all such suggestions, the defense could not dare to prove any such fact by other independent oral or documentary evidence if at all appellant was having any lunatic effect. Thereby, the appellant could not rebut evidence of the witness against him nor prove his innocence.
Page 9 of 15 R/CR.A/1991/2008 CAV JUDGMENT12 At exhs. 23 to 30 the witness has proved necessary documents viz. Preliminary report, intimation to higher officer, Panchnama, etc., on record. Amongst such documents, if we peruse Panchnama exh. 15, it becomes clear that it discloses facts in clear terms that two packets were recovered from the cupboard which was in the house of the appellant and that raiding party has entered into the house through main door; thereby there is no scope of any benefit of doubt. So far as ownership of the house is concerned, since defense has taken stand that the IO has not bothered to prove ownership, the Panchnama categorically discloses that in fact at the time of raid, documents regarding ownership were called for and in absence of documentary evidence to prove the ownership, requisite or available information regarding electricity connection, etc., was recorded in the Panchnama. Seizure memo and report regarding compliance of provisions of the NDPS Act as well as some correspondence are also produced at exhs. 31 to 37. They all are in confirmation of the prosecution case as narrated in the FIR and charge-sheet and as disclosed before the Court by the witnesses. Therefore, when such evidence is in confirmation of prosecution case, appellant has failed to prove even by preponderance of probability and prima Page 10 of 15 R/CR.A/1991/2008 CAV JUDGMENT facie to confirm that either he has not stored the Muddamal in his house or any other appropriate evidence which proves his innocence.
13 P.W. No. 7 - Jagdishbhai MansukhlalThaker examined at exh. 38 is Police Inspector, who has further investigated the case and filed charge-sheet. Therefore, he proves the remaining documentary evidence at exhs. 39 to 45. He has also recorded the statement of the mother of the accused. Surprisingly, now it was suggested to this witness, by the defense lawyer that when statement of mother of the accused was recorded, she was having mental disorder and unable to give her statement. However, witness has denied all such suggestions. On the contrary, during his cross examination, it has come on record that in the house, the accused was residing with his mother and another brother who was remaining away from the village for plying a truck. Thereby even defense of the appellant regarding his brother has been negatived.
14 FSL report of the contraband material is at exhs. 40 to 45, perusal of which makes it clear that the contraband material was Charas and showing positive result during chemical analysis.
15 Whereas during further statement under Page 11 of 15 R/CR.A/1991/2008 CAV JUDGMENT section 313 of the Criminal Procedure Code of the appellant, except denying the prosecution evidence, the appellant has not explained anything about ownership of the house or presence of contraband material in his house, that how and why contraband material was found from his house and that why somebody will lodge false complaint against him or any other reason to create bonafide doubt in prosecution evidence, which is totally supporting the prosecution case, as discussed hereinabove.
16 I have perused the Panchnama as well as the impugned judgment and order, but I could not find any infirmity, irregularity or illegality. Though there are few contradictions and some admissions by the panch witness as pointed out by the defense lawyer, referring to pages 115, 125, 129, 153 and 155 of the paper book in the form of Panchnama at exh. 21, as recorded hereinabove, the entire evidence is to be read together and some lines at some places may not be read separately from the entire evidence so as to decide such case and, therefore, practically there is no conclusive evidence which can create any doubt regarding exclusive possession or investigation so as to extend benefit of doubt for acquitting the appellant.
Page 12 of 15 R/CR.A/1991/2008 CAV JUDGMENT17 The appellant is relying upon the following judgments, contending that exclusive and conscious possession needs to be proved. There is no doubt regarding such legal proposition that before confirming conviction, recovery proceedings must be proper and legal and exclusive and conscious possession is to be proved. However, only because such conceptual principle is narrated in few judgments, without considering the available evidence on record, it cannot be held that because the Hon'ble Supreme Court has acquitted few accused on such ground, all the accused are to be acquitted irrespective of positive, specific and clutching evidence against such accused.
I Gunwantlal v. The State of Madhya Pradesh reported in [1972] 2 S.C.C. 194, wherein the Hon'ble Supreme Court has dealt with the word 'possession' with reference to the Arms Act.
II Ismailkhan Aiyubkhan Pathan v. State of Gujarat reported in [2000] 10 S.C.C. 257, wherein the Hon'ble Supreme Court has held that conviction cannot sustain only on the basis of presence of the accused persons in a room which was in possession of another person and when such another person was not an accused in this case. However, the fact remains that factually the Page 13 of 15 R/CR.A/1991/2008 CAV JUDGMENT scenario before us is different inasmuch as the house from where contraband material was found, is owned and possessed by the appellant and mere co-ownership by his brother would not attract the application of such judgment.
III Avtar Singh v. State of Punjab reported in [2002] 7 S.C.C. 419, wherein the Hon'ble Supreme Court has held that the presumption for possession is not proper if question of possession is not addressed during the evidence and thereby no question was asked to the appellant under section 313 of the Cr. P.C about the possession of such material. Unfortunately, factually it is not the position before us inasmuch as while recording statement under section 313, the trial Court has specifically asked questions regarding possession to the appellant and thereby appellant was given an opportunity to explain his case, but he failed.
18 Therefore, as stated hereinabove, though proof of possession is to be established before the accused is subjected to punishment when evidence specifically confirms that the appellant is not only in possession, but is owner of the house, such judgments would not help the appellant to get rid of the conviction. Even at the cost of repetition, it is to be noted that Page 14 of 15 R/CR.A/1991/2008 CAV JUDGMENT only because the house is owned jointly with the brother, it would not be the criteria to acquit the appellant when he is also co-owner and in actual possession of the house at the time of raid and when evidence on record confirms that his brother is moving around for plying the truck and thereby may not be available for continuous possession of the house. Whereas the IO has declared him as absconding for the same offence and, therefore, it cannot be said that the appellant is innocent and entitled to benefit of any such judgment.
19 In view of above discussion, there is no substance in the appeal and hence appeal is dismissed. R & P be sent back to the concerned trial Court.
(S.G.SHAH, J.) * Pansala Page 15 of 15