Gujarat High Court
Ramdharising Bhamdarsing vs State Of Gujarat on 17 February, 2005
Author: D.K. Trivedi
Bench: D.K. Trivedi
JUDGMENT K.M. Mehta, J.
1. This appeal, which is filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), is directed against the judgment and order dated 30.11.2000 passed by the learned Additional Sessions Judge, Court No. 2, Ahmedabad, in Sessions Case No. 164 of 2000 by which Ramdharising Bhamdarsing Yadav, original accused, appellant herein, is convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") and punished with rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- (Rupees one lakh). It is also stipulated that if the accused fails to pay fine of Rs. 1,00,000/-, he should further undergo six months' rigorous imprisonment. The learned trial Judge has thereafter passed order regarding disposal of muddamal after the period of appeal. As the accused was in jail (at the time of conviction), the learned trial Judge has also given set off for the period for which he was already in jail.
2. The relevant facts giving rise to this appeal are as under:
2.1 On 3.3.2000 the Police Inspector, Narcotic Cell, CID Crime, (i.e. NDPS Cell) received an information that a person, who is short in stature whose name is Ramdharising Bhamdarsing Yadav, who has put on one Kurta and also bandi, is likely to go to Shardaben Hospital from 3.00 to 4 p.m. along with one bag which contains charas. He was to travel from Potalia Bombay Housing to Potalia Char Rasta towards Shardaben hospital in City of Ahmedabad. The NDPS Cell received the said information which was registered in the register. The aforesaid information was conveyed to the Superintendent of Police, Narcotic Cell and that they were directed to go for raid and also for arranging for the same. It may be noted that the Police Inspector, State Narcotic Cell, also addressed a letter dated 3.3.2000 to the Police Superintendent and reported about the same for arranging raid. On receipt of the said information, Narcotic Cell sent Vinod Dantani, police constable, to call for two panchas. He has called two panchas, namely, one Bhimjibhai Manilal Marwadi and another Laxman Shankarrao Marata. The panchas came and they were explained about the incident. Thereafter a raid was arranged and in the raid PSI Mr. V.J. Solanki; PSI Mr. J.B. Rana; Headconstable Mr. H.L. Kapadia, Assistant Superintendent of Police J.B. Vash and police constable Mr. Vinod Dantani, all came together and noted the incident and reported to the Police Superintendent, Narcotic Cell. It may be noted that preliminary panchnama was also prepared at 2.30 p.m. to 2.45 p.m. All these people went through Government vehicle No. G.J. 1 G 3272 and went from New Mental, Narcotic Cell to Chamunda Bridge, near Amber Cinema, Potalia Char Rasta. The Officers of Narcotic Cell also took necessary articles for conducting raid. They took a bag, a seal, kit box, weighing machine etc. At about 3.30 p.m. a person was travelling from east of road (i.e. from Potalia Bombay Housing) to Potalia Char Rasta near telephone booth near tea stall. At that time officers of the raiding party asked his name. He gave his name as Ramdharising Bhamdarsing Yadav, (aged about 92) residing at footpath of Maninagar Railway Station. Originally, he was a resident of Bihar.
2.2 As the said man was knowing only Hindi language, the said officers of the raiding party had explained him in Hindi that they have information that he is in possession of charas and likely to carry the same and they are police Inspectors of Gazetted Officer and panchas. It was also informed him that they desire to search him and at that time he was informed that he has a right to call Gazetted Officer or a Magistrate and they will be able to arrange for the same. He was also explained the same in Hindi. However, that person - accused told them that he did not want to call anybody and the police party can search him.
2.2A Thereafter, the officers of raiding party has taken custody of a bag from him. The said bag was opened and in the said bag there was a small bag which contains the offending article. The raiding party took smell of the said article in presence of panchas and the Police Inspector Mr. Solanki examined the same and found the same to be charas. Thereafter, the same was weighed and it was found to be 900 grams of charas which valued at about Rs. 27,000/-. Out of that 880 grams was separated in one sample which marked as sample A, another sample of 10 grams marked as sample A/1 and the other sample of 10 grams marked as A/2. All these samples were sealed and put it in the bag. Panchas have also signed on all the three samples. It was also stated that about Rs. 60/was found from the pocket of the accused.
2.3 The Police Inspector, State Narcotic Cell, prepared a complaint at the spot. As the offence under NDPS Act was committed, seizure memo was also prepared and the accused was also arrested at about 4.45 p.m. The Police Inspector, thereafter, sent a sample to the Assistant Director, Narcotic Department for analysing the same on 3.3.2000 along with Prohibition Crime Register 27/2000. The State Narcotic Cell thereafter sent the sample to F.S.L. (Forensic Science Laboratory) by the communication dated 3.3.2000 and directed them to give its report. It was also stated that they are authorised to cut the same. The Deputy Director of F.S.L. examined the same and informed Narcotic Cell by letter dated 7.3.2000 that the parcel marked A/1 which was sent to FSL contains a substance as charas as defined under NDPS Act. After they have analysed the sample, further investigation was carried out and on receipt of the report and completion of investigation, the appellant was chargesheeted for offence punishable under Section 8(c) read with Section 21 of the NDPS Act before the City Civil Court, Ahmedabad.
2.4 The learned trial Judge framed charge at Exh. 1 against the appellant of the offence punishable under Section 8(c) read with Section 21 of the NDPS Act. The charge was read over and explained to the appellant in Hindi as the appellant was not knowing Gujarati. The appellant had pleaded not guilty to the same and claimed to be tried.
2.5 The prosecution has examined PW 1 Bhimjibhai Manilal Marwadi at Exh. 8, a panch; PW 2 Vijaysing Laxmansinh Chauhan, Exh. 13, an Officer of CID Crime, Narcotic Cell; PW 3 Jagatsinh Bhupatsinh, Exh. 23, also an Inspector of Narcotic Cell; PW 4 Abbaskhan Hematkhan, Exh. 28, an Officer of CID Crime, Narcotic Cell, Gandhinagar. All these witnesses were examined before the trial Court to prove the case against the accused.
2.6 It may be noted that Shri Bhimjibhai Manilal Marwadi was a panch. He is serving in one private Company and carrying on masonry work. He is not an officer from police department and he is an independent witness. As per his oral deposition, he has stated that the Police on 3.3.2000 at 2 O'clock called him and explained him that one person is likely to carry charas and the police officer desires to call him as a panch for which he has agreed. According to him along with the police party he was there near Potalia Char Rasta. He also went in police car. When the said accused was seen, the Police Inspector has called him and informed him that they desire to search him. The accused had a bag in his hand. It was also informed him that if he desires to call a Magistrate or Gazetted Officer before making a search then he is entitled for the same for which he has a right. However, the accused said that he did not want to call any person. Thereafter, the bag was searched. In the said bag one plastic bag was also available in which there was a substance. The Police Inspector Mr. Chauhan has smelt it. The said substance was identified as charas. It was weighed 900 grams. Out of that three samples were prepared, one sample of 880 grams, another sample of 10 grams and another sample of 10 grams. All these samples were sealed in his presence and his signature was also taken on the same. Thereafter, panchnama was also prepared on which his signature was also taken. He also identified muddamal mark A. He has also identified signature of second panch Mr. Laxman Shankerrao Marata. He has also corroborated the facts set out in the panchnama at Exh. 9. He has also corroborated the writing by which the accused was informed that he can call Gazetted Officer or a Magistrate during his search and the authority is prepared to make necessary arrangement. Even below that communication the accused has written in Hindi which is also confirmed by him at Exh. 10. Thereafter, seizure memo was also prepared and below the seizure memo the accused was informed that he has obtained necessary information that charas of 900 grams having in his possession and the said substance is obtained from the accused. The accused was in possession of the said goods. The seizure memo was prepared at Exh. 11. He has also identified the accused.
2.6A In the cross-examination of the said witness, he has denied the suggestion of the defence counsel that when he went there, all the papers were ready and he has signed on them. He has also denied the suggestion of the defence counsel that they have not weighed the offending article and they have not sealed the goods as stated above. He has also denied that the accused was not searched in his presence. However, Police Inspector Mr. Chauhan has identified the goods as charas. He has also denied the suggestion of the defence counsel that the accused was signed by coercion. He has also denied the suggestion that because he has good relation with the police he has signed the same. Though he was cross-examined, he was not shaken and he has stated that what is stated in the examination is true.
2.7 The next witness Vijaysinh Laxmansinh Chauhan, PW 2, Exh. 13 is an Officer of CID Crime, Narcotic Cell. He has also stated that he has received information at 2 O'clock from one informer about a person carrying charas and he has prepared the information at 2.10 p.m. He has also informed about the same to the Police Superintendent on the same day. He has corroborated the content of letter addressed by the Police Inspector to Narcotic Cell regarding the said which is produced at Exh. 14. He has also stated that the Police constable Dantani called two panchas and the panchas had come and thereafter raid was arranged and raid was carried out. Preliminary panchnama was prepared at 2.30 to 2.45 p.m. in Narcotic Cell and thereafter further panchnama was prepared. He has stated that in presence of panchas, the raiding party has called the accused and he was also orally as well as in writing informed that they are Gazetted Officers and the accused has a right to call for any Gazetted Officer before the search and for which necessary arrangement can be made. The accused was explained the same in Hindi that if he desires to call any Gazetted Officer or a Magistrate, he can call them. He was also explained in Hindi that he has a right for the same. He stated that he does not want to call Gazetted Officer or a Magistrate and the police officers can carry out search. He has also confirmed that the letter dated 3.3.2000 addressed by Police Inspector to the accused Ramdharisinh Bhamdarsing Yadav which is produced at Exh. 10. Below the letter the accused has also written in Hindi confessing the same. He has corroborated the raid and substance having found from the possession of accused and three samples were prepared, one sample of 880 grams and another two samples of 10 grams marked A, A/1 and A/2. All these three samples were signed by panchas and they were sealed by the Police Inspector, NDPS Cell, CID Crime. Seizure memo dated 3.3.2000 was also prepared Exh. 11 in which he has signed and accused has also signed below it. He has also corroborated that Police Inspector Narcotic Cell has also addressed to the accused which is produced at Exh. 12. Below that the accused has confessed that he has read it. He has stated that what is stated in this is true and he has also stated that a complaint was lodged, panchnama was prepared for which he has also corroborated the same. He has also stated that the complaint was filed by Mr. Vijaysinh Laxmansinh Chauhan, Police Inspector, which is produced at Exh. 15 which has been written by one Mr. Hirabhai Kapadia and he has identified the writing of the same. He has further stated that thereafter CID Crime Zone Police Station took over the investigation and necessary entry was made in diary for registering the offence. He has stated that for further investigation as direction of the Superintendent of Police, all the papers were handed over to Mr. Abbaskhan, Police Sub Inspector at about 6 O'clock. Thereafter the substance was sent to FSL for which a letter was written by the Police Inspector to FSL which is produced at Exh. 25 and FSL has received the same which is produced at Exh. 24. He has stated that the offence was registered. He has also corroborated that muddamal pavti was also received which is produced at Exh. 19. He has also stated that thereafter the Police Inspector addressed a letter to the Police Superintendent that raid has been carried out successfully which is produced at Exh. 20. He has stated that the Police Inspector has also addressed a letter to the Police Inspector Mr. Chauhan in connection with the arrest of the accused for which the Police Inspector informed the relative of the accused one Kalusinh Rajput and he has also informed the relatives of the accused in his native place of Bihar about the arrest of the accused. FIR was registered at Exh. 21 about the same.
2.7A Vijaysinh Laxmansinh Chauhan was also cross-examined by the defence counsel. He has denied that he has not received any such information and conducted raid. He has stated that the accused was arrested. The said information was not narrated in the station diary. However, other details have been narrated in this behalf. He has also stated that log book of vehicle is being kept in a car and regarding raid the same was narrated in the vehicle in question. He has denied the suggestion of the defence counsel that the raid was not carried out in presence of panchas and others. He has stated that the samples were sealed as stated above. He stated that everything was explained to the accused in Hindi. However, the accused was explained after translating the same from Gujarati to Hindi that has not been stated. He has also denied the contention of the defence counsel that the accused was wrongly implicated in the offence at the instance of the priest of Hanumanji Temple. He has denied the suggestion that Exhs. 10 to 12 were not given to the accused. He has also denied the suggestion of the defence counsel that there was pressure on the accused to sign all the documents. He has also denied the suggestion of the learned defence counsel that the accused was caught hold of two to three days prior to the incident and he was assured of release if he signs the documents in question. He has also denied that a false and fabricated case has been lodged against the accused. He has handed over the goods in question to the person who is investigating the offence. Though he was cross-examined, he was not shaken and he has stated that what is stated in the examination is true.
2.8 The prosecution has examined one Jagatsinh Bhupatsinh, PW 3, Exh. 23, an officer of Narcotic Cell. He has also stated that at 2.30 p.m. the Police Inspector Mr. Chauhan and police constable Mr. Dantani called panchas and thereafter Police Inspector Mr. Chauhan, Police Sub-Inspector Mr. Solanki; PSI Mr. J.B. Rana; Headconstable Mr. H.L. Kapadia, and driver of jeep Mr. Pathan who are members of the raiding party and had gone near Potalia Char Rasta through Bombay Housing which leads to Shardaben in connection with search of the accused. He has stated that at about 4 O'clock they have also taken necessary goods for carrying raid, namely, kit box, weighing machine, seal etc. and they had left office at 2.15 p.m. for which necessary information was registered in the register. He stated that when the accused was caught hold of he was informed that they are Gazetted Officers and member of panch and desire to carry search of the accused. If the accused desires to call Gazetted Officer or a Magistrate he can do the same. The said thing was explained to him in Hindi orally as well as in writing. Thereafter, raid was carried out and necessary goods were also caught hold for which We are not repeating because in the earlier oral evidence the said fact has come on record. This witness has also corroborated that he has received a letter from the Deputy Director regarding FSL report. He has also registered nature of offence which is produced at Exh. 25. He has confirmed that the goods contained the seal and was in the possession of Mr. Abbaskhan who was investigating the offence. He has also confirmed that on the seal, there is a seal in English PI, NDPS, G.S.C. I.D. Crime, Ahmedabad. He has stated that he has taken muddamal- offending article to FSL. He has stated that the Police Inspector, Narcotic Cell has sent the offending article to FSL for which Exh. 26 is produced in which entry was registered at 192 for which his signature was taken which is produced. He has identified that the accused was in Court.
2.8A Jagatsinh Bhupatsinh was also cross-examined. He has denied that there was no raid carried out and there was no seal on the goods in question. He has denied the suggestion of the learned defence counsel that the accused was caught hold of and there was no charas found from him and no panchnama was prepared. He has also denied that Police Inspector Mr. Chauhan has not shown arrest warrant or authorised papers to the accused. He has also stated that everything was explained to the accused in Hindi. He has denied the suggestion of the learned defence counsel that the accused has signed papers at Exh. 10, 11 and 12 on the pressure by the Police Officer. He has also denied the suggestion of the learned defence counsel that he was sitting on the open place and police has asked him to get up. He has denied the suggestion of the learned defence counsel that he is giving evidence to help the police. Though he was cross-examined, he was not shaken and he has stated that what is stated in the examination is true.
2.9 The prosecution has examined Abbaskhan Hematkhan, PW 4, at Exh. 28 who is an officer of CID, Crime, Narcotic Cell, Gandhinagar, who has taken over the investigation subsequently. He confirmed that the FSL report has been received by Police Sub-Inspector which is produced at Exh. 29. He also stated that the accused was explained about the complaint and panchnama in Hindi as well as seizure memo for which he has also signed.
2.9A Abbaskhan Hematkhan was also cross-examined. He has stated that he obtained statement of person who has taken muddamal and has handed over the muddamal to the FSL. He has taken the statement of officer to whom muddamal was handed over and the police officer who has taken the muddamal to the FSL. He has stated that all papers like complaint, panchnama, and seizure memo though they were in Gujarati, accused was explained everything in Hindi. He has denied the suggestion of the learned defence counsel that a false and fabricated case has been lodged against the accused. He also denied that the accused has signed the papers under duress. Though he was cross-examined, he was not shaken and he has stated that what is stated in the examination is true.
2.10 Over and above oral evidence, the prosecution, as indicated earlier, produced Exh. 6 muddamal yadi from the Police Sub-Inspector and Exh. 7 by which the prosecution has produced list of documents. The prosecution has also produced (Exh. 9) a panchnama containing information that from where the muddamal was received by the accused, what was the content of muddamal and making three samples A, A/1, A/2. The said report was signed by the Police Sub-Inspector, Narcotic Cell. Thus, the prosecution has also produced documentary evidence, preliminary panchnama carried out at 2.30 to 2.45 p.m., further panchnama from 3.30 to 3.45 p.m. The said panchnama recorded that raid was carried out and charas was found from the possession of the accused. It was also stated that about 900 grams charas was found and the police party had prepared three samples, one sample of 880 grams marked "A", another two samples of 10 grams each marked A/1 and A/2. A letter addressed by the Police Inspector to the accused Ramdharising Bhadarsing Yadav in which it was also stated that the accused was explained in Hindi that the Police Officers desire to carry out raid and he is entitled to call a Magistrate or Gazetted Officer (Exh. 10). In fact, below the letter in Hindi the accused written down and confirmed that the Police Officer has informed that he is entitled to call Gazetted Officer or a Magistrate and he has said that he did not want to call anybody. Regarding mandatory requirements, the Police Inspector has informed and explained the accused in Hindi and he is entitled to call a Gazetted Officer or a Magistrate and he has a right to call them for which the accused said "no". A seizure memo at Exh. 11 was prepared by the Police Inspector in which also it was stated that the accused was in possession of 900 grams charas. The accused has also signed below the said seizure memo that he has received the said letter. Another documentary evidence Exh. 12, an information regarding arrest of accused by the Police Inspector, Narcotic cell to the Police Station Officer that the raid was carried out and the accused has committed an offence under NDPS Act for which he has been arrested on 3.3.2000 at 4.45 p.m. The accused has signed in Hindi. Another letter dated 3.3.2000 addressed by the Police Inspector, Gujarat State Narcotic Cell, to the Police Superintendent regarding advance information that such accused is likely to visit near Shardaben Hospital (Exh. 14). The prosecution has also produced documentary evidences such as complaint at Exh. 15 by Mr. V.L. Chauhan narrating all these aspects. Registering of advance information at Exh. 17 by the Police Inspector, Mr. V.L. Chauhan at about 2.10 p.m. Regarding advance information, report by Gandhinagar Police Station regarding offence against the accused at Exh. 18, muddamal pavti registered at Gandhinagar Police Station at Exh. 19, letter addressed by the Police Inspector to the Police Superintendent regarding successful raid carried out at Exh. 20, FIR book for 1999-2000 regarding offence registered on the same day at about 4.45 p.m. produced at Exh. 21, muddamal sent to FSL at Exh. 25 and muddamal received by FSL at Exh. 24, original register of 1999-2000 of State Narcotic Cell for entry No. 192, copy of the original register at Exh. 26, FSL report at Exh. 29. It may be noted that accused had given an application on 11.7.2000 that he wants to engage an advocate for this defence at Exh. 3. The Registrar of City Civil Court passed an order No. 64 of 2000 appointing Mr. B.C. Chokshi to defend the accused on 17.7.2000. The said order is produced at Exh. 5. Regarding oral and documentary evidence, the learned Trial Judge explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code of Criminal Procedure, 1973. In his further statement the appellant had denied the case of prosecution. However, he has only stated that he had come from Mumbai and he had slept on footpath and he was not aware thereafter. He had stated that there was one priest at temple who had misbehaved with one lady for which he had scolded. Thereafter, the police had arrested him and this priest had registered a false case against him.
2.11 On appreciation of oral and documentary evidence adduced by the prosecution, the learned trial Judge has held that the information received by the police is genuine which has been recorded in the register. The accused was given enough opportunity before the goods was seized. The prosecution has been able to prove that the accused was in possession of 900 grams charas. The accused was explained everything in Hindi which is his mother tongue as he was not knowing Gujarati. The learned trial Judge considered FSL report and ultimately came to the conclusion that the goods which has been seized from the possession of the accused was charas. The learned trial Judge stated that defence offered by the accused in the statement recorded under Section 313 of the Criminal Procedure Code is not believable as the accused has not produced anything in support of the same. The learned trial Judge has believed the case of the prosecution after relying on the documentary evidence and oral evidence. The learned trial Judge has held that on appreciation of evidence adduced by the prosecution, it was proved by the prosecution beyond reasonable doubt that the appellant was in possession of 900 grams charas and that he has committed an offence punishable under Section 8(c) read with Section 21 of the NDPS Act. The learned trial Judge recorded the finding that it is proved beyond reasonable doubt by the prosecution that mandatory requirements under Section 50 of the NDPS Act were complied with and that the appellant could not satisfy the Court that there was any breach of the mandatory provisions of the NDPS Act committed by the prosecution. After holding that the appellant had committed offence punishable under Section 8(c) of the NDPS Act, the appellant was heard regarding punishment as required by Section 235(2) of the Code of Criminal Procedure. It was stated that the accused was an old person. The learned Judge thereafter punished the appellant as mentioned earlier by the judgement dated 30.11.2000 giving rise to the present appeal.
3. The appeal was notified before this Court for final hearing and the learned advocate Ms. Shilpa Unwala has mentioned that the accused is of 97 years old and therefore a little priority may be given to the matter and therefore this Court has given priority to the matter and that is why the matter has been heard by this Court.
3.1 We have considered the submissions advanced by the learned counsel for the appellant and reappreciated the whole evidence on record.
SUBMISSION OF THE LEARNED ADVOCATE ON BEHALF OF THE ACCUSED/APPELLANT:
3.2 Ms. Shilpa Unwala, learned advocate appears on behalf of the accused. She has raised the following contentions:
(i) The learned advocate submitted that it is no doubt true that the procedure regarding mandatory provision of Section 50 of the NDPS Act has been complied with by the prosecution by leading oral as well as documentary evidence and therefore she is not seriously contending that prosecution has committed breach of Section 42 read with Section 50 of the NDPS Act.
(ii) The learned advocate has submitted that though the prosecution has examined some of the police officers, it has not examined the police constable Shri Dantani and second panch witness Shri Laxman Shankarrao Marathi and therefore to that extent the case of prosecution is weak. So the prosecution has not proved their case beyond reasonable doubt.
(iii) The learned advocate further submitted that in this case originally advance information was received by the authority which was recorded at 2.10 p.m. as Exh. 17. Thereafter, ultimately preliminary panchnama was recorded from 2.30 to 2.45 p.m. She has further submitted that the distance between Narcotic Cell and the place of incidence was about 15 minutes by walking, so naturally as soon as the officer received the information, he has asked the police constable Shri Dantani to call panchas and Shri Dantani had gone to call two panchas and thereafter panchas had come and preliminary panchnama was recorded from 2.30 to 2.45 p.m. The learned advocate has submitted that if the distance is covered by 30 minutes i.e. 15 minutes for going and 15 minutes for coming back and as the advance information has been recorded at 2.30 p.m., subsequent preliminary panchnama cannot be prepared at 2.30 p.m. as stated by the Investigating Officer. The learned advocate has therefore submitted that the investigation carried out by the Police Officer is not genuine and therefore a doubt is created. So the prosecution failed to prove their case beyond reasonable doubt. The learned counsel further submitted that final panchnama has been recorded at 3.30 to 3.45 p.m. This also could not have been prepared in view of the incident occurred. Therefore, to that extent, the panchnama is not properly proved and therefore benefit of doubt may be given to the accused.
(iv) The learned advocate further submitted that in the panchnama which was recorded by the police officer it is stated that Rs. 60/- was recovered from the accused whereas in further statement of the accused, the accused has stated that that Rs. 570/- has been recovered. The learned advocate submitted that the subsequent statement indicated that the accused was found with Rs. 550/- and this shows that the police officer has not properly carried out the investigation and also not recorded panchnama properly and therefore the investigation carried out by the police officer is not genuine and bona fide and the police officers have tried to falsely implicate the accused and therefore benefit of doubt may be given to the accused.
(v) Finally, the learned counsel submitted that the age of the accused was 92 years at the relevant time when the offence was committed and he is now about 97 years old and having regard to his age, he could not have carried out such operation.
4. Mr. I.M. Pandya, learned Additional Public Prosecutor, has made the following submissions:
(i) The learned A.P.P. has stated that in this case the prosecution has examined oral as well as documentary evidence to show that the prosecution has complied with the mandatory provisions of Section 42 read with Section 50 of the NDPS Act.
(ii) The prosecution has examined all relevant police officers and produced oral evidence and therefore non-examination of Shri Dantani and second panch witness cannot make the case of the prosecution weak. The other evidence examined by the prosecution shows that the prosecution has been able to prove the case beyond reasonable doubt. Therefore, non-examination of Shri Dantani and second panch witness is not fatal to the case of the prosecution.
(iii) The learned A.P.P. further submitted that it is no doubt true that the police have stated that Rs. 60/- was recovered from the possession of the accused whereas in the subsequent statement of the accused, he has stated that Rs. 570/- was recovered. The learned A.P.P. stated that this is a minor discrepancy that will not vitiate the case of the prosecution. He submitted that regarding the charge that the accused had in possession of charas, the prosecution has been able to prove the case and therefore this minor discrepancy cannot be considered to disbelieve the entire case of the prosecution on merits.
(iv) As regards the age of the accused, the learned A.P.P. submitted that at this very advanced age, the accused is found to be committed an offence and when the prosecution has been able to prove the case in view of the fact that the provisions of the NDPS Act is concerned with the health of the public and it resulted into minor offence, no mercy can be show to the accused in this behalf.
5. We have considered the arguments of the learned advocate for the accused as well as the learned Additional Public Prosecutor on behalf of the respondent State.
5.1 Regarding mandatory provisions of Sections 42 and 50 of the NDPS Act - It may be true that in this case the learned counsel for the accused has not seriously challenged the aspect that the prosecution has not complied with the mandatory provisions of Section 42 and 50 of the NDPS Act. However, in this case the prosecution has led oral as well as documentary evidence, particularly, panchnama Exh. 9, Exh. 10 in connection with the arrest of the accused and Exh. 11 seizure memo, Exh. 12 accused being arrested. The prosecution further proved that the accused was in possession of charas.
5.2 The learned A.P.P. has stated that mandatory provisions of Sections 42 and 50 of the NDPS Act have been complied with. It may be noted that the learned trial judge has also given finding that Section 50 of the NDPS Act has been complied with. That is the reason We are briefly discussing the said aspect of complying with mandatory requirement. Section 50 of the NDPS Act stipulates condition under which search of persons shall be conducted. Sub-section (1) of Section 50 provides that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and he has to be informed that he can call any Gazetted Officer or a Magistrate for which he has a right. In this context, we are considering the judgment of the Hon'ble Supreme Court which has considered the scheme of Section 50 of the NDPS Act in the case of STATE OF PUNJAB VS. BALDEV SINGH reported in AIR 1999 SC 2378 = (1999(6) SCC 172) particularly para 55 on page 2400 (of AIR) where the Hon'ble Supreme Court has observed thus:
"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"
5.3 It may be noted that the aforesaid judgment and other judgments of the Hon'ble Supreme Court has been considered by the Full Bench of this Court in the case of BHUPATJI SHAKARAJI VS. STATE OF GUJARAT reported in 2003(2) GLR 1127. In para 9 on page 1135 of the said judgment the Full Bench has observed thus:
"The purpose underlying the provisions of Sec. 50 is to enable a person to object against being searched by the authorised officer and to require to be taken either to a nearest Gazetted Officer or to a nearest Magistrate and get it decided there whether he should be searched or not. This becomes clear from the provision of sub-sec. (3) of Sec. 50 which lays down that the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. The provision, thus, gives the suspected person a right to object against being searched by the authorised officer and instead require that he be taken either to a Gazetted Officer or to a Magistrate for a decision whether he should at all be searched and if it is decided that he should be searched, then the search be made under the direction of such authority before whom he has been taken. When such person requires that he be taken either to a Gazetted Officer or a Magistrate, and if he is directed to be searched there, he stands the risk of getting the contraband article recovered from him in the presence of an independent superior officer or a Magistrate, but, at the same time, if he does not possess such article on his person, he will stand a complete chance of demonstrating that fact in the presence of the superior officer or the Magistrate before whom he is taken and in which place, there would, ordinarily, be no possibility of his being wrongly implicated by planting any contraband article on him. The whole purpose of the option is to enable a person to require that he be taken either to a Gazetted Officer or a Magistrate, as may be the nearest, who will decide upon the search being made, and if directed to be made, to bring about the authentic outcome of the search which may result in the discharge of the suspected person, if nothing is recovered from him that may amount to a contravention of any of the provisions of the Act. Thus, the opinion contemplated by Sec. 50 is not an option to choose between the nearest Gazetted Officer of any of the departments referred to in Sec. 42 and the nearest Magistrate, but an option to require that, instead of search by the authorised officer, he be taken for search in presence of either of them."
5.4 In view of this, even if it is assumed that Section 50 of the NDPS Act is applicable to the facts of the case then as per the oral and documentary evidence led by the prosecution, in our view, the prosecution has complied with the mandatory provisions of Section 42 and Section 50 of the Act and the finding of the learned Judge that prosecution has complied with the mandatory requirements of Section 50 of the NDPS Act is legal and correct. In view of the same, the contention of the learned A.P.P. deserves to be accepted and also the finding of the learned trial judge deserves to be accepted.
5.5 As regards second contention that prosecution has not examined the police constable Mr. Dantani and second panch witness, We are of the view that prosecution has examined one panch witness Mr. Bhimjibhai Manilal Marwadi at Exh. 8, PW 1, to prove the panchnama. The prosecution has examined the said witness to prove that in his presence the police officers have seized a bag from the accused which contained the offending substance from the possession of the accused. Though this witness has been subjected to gruelling cross examination the defence could not bring anything on record to impeach credibility of this witness. His evidence does not suffer from any infirmity or any contradiction or omission with reference to the contents of panchnama. Nothing has been brought on record to see his evidence is disbelieved. The evidence of the witness Mr. Bhimjibhai Manilal Marwadi inspire confidence. His evidence is corroborated by the evidence of police officer Shri Vijaysinh L. Chauhan, Exh. 13 who has stated that panchnama was prepared in his presence. His evidence is reliably corroborated by other documentary evidence on record. His evidence is also corroborated by reliable evidence of police officer who has stated that the offending substance has been seized in the presence of police officer from the possession of the appellant. Thus, this witness has been examined to prove the fact that on the day of incident the appellant was in possession of the charas i.e. the offending article.
5.5A The law is well settled that prosecution is not required to multiple evidence. What is relevant is a quality of evidence and not quantity of evidence. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case, be required for the proof of any fact. In view of the same, Indian Evidence Act does not require that proving the fact examination of certain number of witnesses is necessary. In view of the said section evidence has been weighed and not counted.
5.5B After going through the evidence of panch witness and evidence of other police officers, we are of the view that prosecution has proved the case and their evidence is wholly reliable. The evidence of one panch is reliable and free from all taints. Therefore, non-examination of Mr. Dantani and one panch witness is not vital to the prosecution.
5.5C In view of the same, we reject the contention of the learned advocate for the appellant and rely on the contention raised by the learned Additional Public Prosecutor.
5.5D In this connection, the learned A.P.P. has relied on the Division Bench judgment of this Court (Coram: J.M. Panchal & J.R. Vora, JJ) in Criminal Appeal No. 12 of 2002 in the case of RAGHUBHAI GANDABHAI BHARWAD VS. STATE OF GUJARAT decided on 5-6/2/2002 particularly para 18 on page 45 of the said judgment. The Division Bench in that case has relied on the decision of the Hon'ble Supreme Court in the case of AHER RAJA KHIMA VS. STATE OF SAURASHTRA reported in AIR 1956 SC 217 wherein it is ruled that the presumption that a person acts honestly applies as much in favour of a police officer of other persons and it is not a judicial approach to distress and suspect him without good grounds therefor. What is laid down for the guidance of the Courts is that the attitude to distrust and suspect a police officer without good ground, therefore, could do neither credit to the magistracy, nor good to the public and it can only run down the prestige of the police administration. Reading the evidence of police officers who are examined in the case, we are of the firm opinion that the prosecution case cannot be disbelieved merely because the police constable Mr. Dantani and second panch witness have not been examined. We further find that the evidence of the police officers which has been produced by the prosecution gets corroborated from the documentary evidence also. The oral evidence gets corroborated from the report of the FSL which was prepared and which is produced on record of the case.
5.5E In this case once the evidence of the other police officers found to be true and dependable, judicial pragmatism requires that merely because one police constable and second panch witness have not been examined, it should not be made a ground to discard the whole evidence. Under the circumstances, the plea that the evidence of police constable Mr. Dantani and second panch witness have not been examined and therefore the accused is entitled to acquittal, cannot be upheld.
5.5F The learned A.P.P. has relied on the judgment of the Hon'ble Supreme Court in the case of STATE OF MADHYA PRADESH VS. DHARKOLE ALIAS GOVIND SINGH AND ORS. reported in 2004 AIR SCW 6241 particularly paragraph 14 on page 6247 where the Hon'ble Supreme Court has observed that non-examination of some persons per se does not corrode vitality of prosecution version, particularly when the witnesses examined have withstood incisive cross-examination and pointed to the respondent as the perpetrators of the crime.
5.6 The third contention is regarding discrepancy in recording of panchnama regarding timings and creating a doubt in the minds of Court and therefore the contention that the prosecution has failed to prove the case against the appellant and benefit of doubt should be given to the appellant.
5.6A As regards third contention, we have considered that as (Exh. 7) the Police Officers have received a secret information at 2.10 p.m. that one person who is small in size wearing long and loose shirt and bandi likely to carry charas on 3.3.2000 round about 3 to 4 p.m. It may be noted that thereafter the police officers have called panchas and decided to carry out raid. The said preliminary panchnama was recorded at 2.30 to 2.45 p.m. Afterwards, the Police Officers and raiding party went near Potalia Talav char rasta and went near the spot near Potalia char rasta at about 3.30 p.m. At that time the police officers and raiding party located a man near Chamunda bridge where the accused was caught. Thereafter necessary procedures were followed and ultimately he was caught hold of. Final panchnama was recorded at 3.30 p.m. to 3.45 p.m. It may be noted that raiding party went to the spot by Government vehicle bearing No. GJ 1 3272 from Narcotic Cell to Potalia Talav. In view of the same, the contention of the learned advocate for the appellant that the distance between Narcotic Cell and the spot where the appellant is found is such if one has to travel by walk it takes 15 to 20 minutes and therefore it will take some time and therefore final panchnama could not have been prepared, cannot be accepted. Therefore, the preliminary panchnama which has been prepared at 2.30 to 2.45 p.m. whereas the secret information was received at 2.10 p.m., the final panchnama which is prepared is not believable, cannot be accepted because the police officers have used Government vehicle as per their say and the said distance could have been covered within short time in a Government Vehicle. If the distance is such that by walking it takes 15 to 20 minutes and if the Government vehicle is used naturally it will take less time. In view of the same, the contention of the learned advocate for the appellant that panchnama cannot be believed as there is inconsistency of timing cannot be accepted and we accept the contention of the learned Additional Public Prosecutor that the said evidence is genuine and bona fide.
5.6B It may be noted that the person who was caught at 3.30 p.m. and therefore further panchnama was prepared at 3.30 to 3.45 p.m. which is not inconsistent with any evidence on the record of the case. In fact, the contention of the learned advocate for the appellant is based on the surmises and conjectures and contrary to the record of the case and therefore the same cannot be accepted.
5.6C It may be noted at this stage that the further contention of the learned counsel for the appellant that as there is discrepancy in recovery of amount from the accused that is in case of the panch an amount of Rs. 60/- is recovered but actually more amount is recovered from the appellant and therefore the submission of the learned counsel for the appellant is that there is inconsistency in the evidence and therefore the prosecution has failed to prove the case beyond reasonable doubt. Both these arguments concerned with benefit of doubt and therefore we consider both these contentions together.
5.6D When the accused was searched Rs. 60/- was found from long and loose shirt. It is not his case that more amount was found but less amount is shown in the panchnama. A person may keep more amount with him in different places on his purse and apparel put on him may have several pockets. If after some time subsequently it is found from the accused who has pockets, in his other pocket more amount, it may be noted that panchnama mentioned correct fact which is quite evident from the fact that sum of Rs. 60/- was recovered from long and loose shirt. If amount of Rs. 550/- recovered, the same must be mentioned in panchnama but that amount may not be recovered at that time but subsequently when the accused was taken to jail and he was placed on lock up and at that time the amount has been found. In view of the same, no adverse inference can be drawn against the prosecution in this behalf.
5.6E In view of the alarming increase in drug menace in India, the Parliament enacted the Narcotics Drugs & Psychotropic Substances Act, 1985 which was later amended and called the Prevention of Illicit Traffic in Narcotic Drugs & Psychotrophic Substances (Amendment) Act, 1988 and came into force on July 4, 1988. The Act emphasises on the preventive aspect of drug evil and covers a wide list of substances that are recognised as narcotic drugs. It seeks to prevent people from the dangers of drug abuse. It was for the first time in India, that legislation recognised a wide list of substances that were categorised as dangerous drugs.
5.6F The main policy underlying the Act is to prohibit supply and distribution (trafficking) of prohibited drugs, for which minimum sentence of ten years, which may extend to 20 years, with a minimum fine of rupees one lakh, and a maximum upto two lakhs has been prescribed. The Act makes no distinction between a drug addict and a drug-trafficker in respect of punishment except under Sections 27 and 64-A of the Act.
6. We have considered the object of the NDPS Act which is to curb the illicit drug traffic and drug abuse and therefore concerned with public health. The Act provides offence particularly for trafficking offence and making provisions for exercising effective control over psychotropic substances and make provisions for implementation of the international conventions relating to narcotic drugs and psychotropic substances to which India has become a party. Section 2(iii)(a) provides definition of "charas". Section 2(xiv) defines the term "narcotic drug". Section 2(xv) defines the term "opium". Section 8(c) of the NDPS Act provides prohibition of certain activities/operations relating to narcotic drugs and psychotropic substances and Section 21 of the NDPS Act provides punishment for contravention in relation to manufactured drugs and preparations. Section 35 of the NDPS Act provides presumption of culpable mental state.
6.1 Before we consider the question of benefit of doubt, it may be noted that this case arises out of the provisions of the NDPS Act and we have to consider the provisions of the Act.
6.2 Section 35 of the NDPS Act which reads as follows:
"Sec. 35 - Presumption of culpable mental state - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation - In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this Section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
6.3 According to Section 35 of the NDPS Act, the Court shall presume the existence of mental state, the burden is placed on the accused to prove the fact that he had no such "mental state". The degree of burden of proof is "beyond reasonable doubt". In view of this statutory presumption, the prosecution is required to establish the objective facts i.e. physical control or custody. The prosecution is not initially required to prove the "knowledge" that is to be presumed. The possession is made of two elements, "corpus" and "animus". The prosecution is required to prove the physical control and then the knowledge will be presumed unless disproved by the accused.
6.4 We also rely on Section 54 of the Act which reads as follows:
"Sec. 54 - Presumption from possession of illicit articles trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of -
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
6.5 Section 54 of the NDPS Act contains rule of evidence and lays down that in any trial under the Act the accused who fails to account satisfactorily for the possession of any any incriminating drug, substance or material shall be presumed to have committed an offence in relation to such drug, substance, material. The burden is entirely upon the accused to account his possession of the contraband article satisfactorily. Section 54 states that unless and until the contrary is proved, it has to be presumed that the accused has committed an offence.
6.6 We have considered the facts of the case and also provisions of Section 35 and Section 54 of the NDPS Act. When the prosecution has proved the case beyond reasonable doubt that the accused was found in possession of the offending article, the accused has failed to discharge the burden cast on him under Section 35 read with Section 54 of the NDPS Act.
6.7 At this stage, it may be noted that apart from the crimes under the Indian Penal Code, the magnitude of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 are by no means less alarming. If we consider the seizures of all drugs and narcotics particularly, opium, Morphine, Heroin, Ganja, Hashish, Cocaine, Methaqualone, Amphetamine, Ephedrine, L.S.D., Acetic anhydride and the statistics of total seizures of all drugs and narcotics affected by the enforcement agencies and quantity of drugs seized during the period 1998-2002 then the table showing seizures of Narcotics and Drugs during 1998-2002 shows that from 1998 to 2001 there was alarming increase. However, it was slightly decreased in 2002. Therefore, there must be seriousness regarding this crime.
Table showing seizures of Narcotics and Drugs (No. of cases) During 1998-202.
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Sl.No. Drugs 1998 1999 2000 2001 2002
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1. Opium 954 927 1257 1205 1167
2. Morphine 56 125 142 146 148
3. Heroin 3095 2937 2841 3891 4328
4. Ganja 6018 6518 6073 7613 3687
5. Hashish 2193 2500 2078 2117 2121
6. Cocaine 6 4 5 10 5
7. Methaqualone 114 8 31 8 7
8. Amphetamine - - 11 0 0
9. Ephedrine - - 8 5 4
10. L.S.D. 1 3 0 - 0
11. Acetic 9 7 14 8 4 anhydride
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Total 12446 13029 12460 15003 11471
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During 2002, offences under NDPS Act (25,279) declined by 23.5 per cent as compared to previous year when 24,377 cases were reported.
Table showing quantity of drugs seized (1998-2002)
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Sl.No. Drug Qty. in Kgs.
----------------------------------------
1998 1999 2000 2001 2002
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1. Opium 1834 1635 2684 2533 1867
2. Morphine 14 36 39 26 66
3. Heroin 597 861 1240 889 933
4. Ganja 62591 40113 100056 86929 93477
5. Hashish 8478 3391 5041 5664 4487
6. Methaqualone 2087 474 1095 2024 7458
7. Cocaine 1 1 0.350 2 2
8. Ephedrine - - - 930 126
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(Source: Directorate General Narcotics Control Bureau; Govt. of India 2002 - Criminology & Penology by prof. N.V. Paranjape, Twelfth Edition, under Chapter XII - Crime Statistics, pages 196-197))
7. After considering the provisions of this Act, we consider the provisions regarding benefit of doubt.
BENEFIT OF DOUBT:
7.1 We may also quote from page 31 of Indian Penal Code by Ratanlal & Dhirajlal, 29th Enlarged Edition, (2002), where the learned author has considered the judgment of the Hon'ble Supreme Court and observed in para 25 Rule of benefit of doubt as under:
"As observed by the Supreme Court in Shivaji Sahebrao Bobade V. State of Maharashtra (AIR 1973 SC 2622), the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community demands special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and decree of doubt. The evil of acquitting a guilty person light heartedly as a learned author GLANVILLE WILLAMS in "Proof of Guilt" has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless, a miscarriage of justice may arise from the acquittals of the guilty of less than from the conviction of the innocent. Benefit of doubt is nothing but a state of mind when the presiding officer cannot say and feel with moral certainty of truth that the charge in a criminal case stood proved. Benefit of doubt is a Potent Principle available for the appreciation of evidence in a criminal case. The Court at the time of giving benefit of doubt under the proved circumstances in favour of the accused has to act in a most steady manner so as to come to a definite conclusion that particular circumstance proved on records adversely affect the prosecution case in connecting the accused persons with guilt they were alleged to have committed. The doubt, the benefit of which could be given to the accused must come from the mind of a reasonable and just man. (Joginder Singh Vs. State, 1995 Cr. L.J. 124 (HP)".
(Re: Judgement of Apex Court in the case of State of U.P. Vs. Krishna Gopal (1989 Cri. L.J. 288 = AIR 1988 SC 2154 particularly para 13 on page No. 295 of Cri. L.J.).
7.2 The learned counsel has relied on the Apex Court's judgment in the case of LAL SINGH VS. STATE OF GUJARAT AND ANR. reported in (2001) 3 SCC 221 particularly in para 87 on page 273 the Hon'ble Supreme Court has referred to the judgment of Lord Denning, J thus:
"In that case, the Court also referred to the following observations in Miller Vs. Minister of Pensions by Lord Denning, J.
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable", the case is proved beyond reasonable doubt"
7.3 In para 88 on 273 of the said judgment, the Hon'ble Supreme Court has observed thus:
"It is true that under our existing jurisprudence in criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
7.4 It may be noted that regarding benefit of doubt to be given, the principle has been laid down by the Hon'ble Supreme Court in the case of SUCHA SINGH AND ANR. VS. STATE OF PUNJAB reported in (2003) 7 SCC 643 particularly paragraph Nos. 20, 21 and 22 on page Nos. 653-654. The Hon'ble Supreme Court has observed at paragraph Nos. 20, 21 and 22 of the said judgment as follows:
7.4A "para 20 - Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See: Gurbachan Singh v. Satpal Singh (1990) 1 SCC 445). The prosecution is not required to meet any and every hypothesis put forward by the accused. (See: State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See: Inder Singh V. State (Delhi Admn.) (1978) 4 SCC 161). Vague hunches cannot take the place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties" (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC 315) quoted in State of U.P. v. Anil Singh (1988 Supp SCC 686) (SCC p. 692, para 17).
7.4B Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
7.4C para 22 - The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal (1988) (4 SCC 302). Similar view was also expressed in Gangadhar Behera v. State of Orissa (2002) (8 SCC 381).
7.5 Similar principle regarding benefit of doubt has been laid down by the Hon'ble Supreme Court in the case of STATE OF PUNJAB VS. KARNAIL SINGH (2003) 11 SCC 271 particularly in paragraph 12 on page 279 of the said judgement.
7.5A It has been further stated by the learned counsel for the appellant that NDPS Act being a stringent Act if there is any discrepancy then also benefit of doubt should be given to the accused. In this regard we may usefully consider the judgment of the Hon'ble Supreme Court in the case of SAJAN ABRAHAM VS. STATE OF KERALA reported in (2001) 6 SCC 692 in which on page 695 at para 6 the Hon'ble Supreme Court has observed thus:
"In construing any facts to find whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provision obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection."
7.5B Similar view is taken by the Hon'ble Supreme Court in the case of STATE OF MADHYA PRADESH VS. DHARKOLE ALIAS GOVIND SINGH AND ORS. (supra) particularly paragraph Nos. 10, 11, 12 on pages 6246-6247. In para 11 the Hon'ble Supreme Court has observed that to constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.
7.5C In view of this, we do not find any substance in the contention of the learned counsel for the appellant that benefit of doubt should be given to the appellant.
7.6 In view of this, the contention of the learned advocate that as there is discrepancy in the panchnama as well as the amount and benefit of doubt should be given to the appellant, cannot be accepted in view of the provisions of the NDPS Act as well as the decision of the Hon'ble Supreme Court regarding benefit of doubt which we have discussed earlier. It may be noted that in this case the discrepancy is not in connection with the commission of the main offence where the prosecution has ably proved the case. The only minor discrepancy which is not relevant with the actual committing of offence and therefore we do not accept the contention of the learned advocate for the appellant.
7.7 Though it has been stated that the accused was aged 92 years when the offence was committed and today he is aged about 97 years. However, the accused except recording his statement under Section 313 of Cr.P.C. no other evidence has been led by him to prove that he is aged 92 years at the time when the offence was committed. However, even if it is assumed that he is aged 92 years at the time when the offence was committed, in view of the seriousness of the offence which affects the public health and also an economic offence when the accused received the amount, we are of the view that merely the age of the accused may not play any part in acquitting the accused once it is found that the accused was found in possession of narcotic substance or offending article.
7.7A It may be noted that in this case when we consider the evidence, we have considered the fact that in this case the accused was found in possession of 900 grams of charas. It may be noted that the accused has committed offence in connection with public health. If he would have sold charas he would receive Rs. 27,000/because the market value of charas is very high. In this connection one has to consider that the person who sells and receives consideration has not to pay any tax, like Income-tax, Sales Tax, Customs & Excise Duty etc. To that extent, effect of NDPS Act is that the person also committed economic offence while carrying on such illegal business. In view of the same, we also consider what is the concept of economic offence.
7.8 It may be noted that the Hon'ble Supreme Court in the case of RAM NARAYAN POPLI VS. C.B.I. reported in (2003) 3 SCC 641. In the said case the majority of the Court (Hon'ble Mr. Justice Arijit Pasayat for Hon'ble Mr. Justice B.N. Agrawal and for himself) has cautioned regarding economic offence in paragraphs 382 and 383 on page no. 789 as follows:
"para 382 - The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest, as was aptly stated in STATE OF GUJARAT VS. MOHANLAL JITAMALJI PORWAL reported in (1987) 2 SCC 364.
para 383 - Unfortunately in the last few years, the country has seen an alarming rise in white-collar crimes which has affected the fibre of the country's economic structure. These cases are nothing but private gain at the cost of the public, and lead to economic disaster."
This aspect will also have to be considered in this behalf.
7.9 Regarding economic offence in case of Customs this Court has also considered the judgement of this Court in the case of LINDER FRANK WOLFGANG VS. YOGESH D. SHAH, SUPTD. OF CUSTOMS reported in 2001(2) GLH 127.
7.10 It may be noted that regarding sentence, the accused has filed appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court has disposed of the appeal by reducing the prayer for reducing the sentence. The said judgment in LINDER FRANK WOLFGANG VS. YOGESH D. SHAH AND ANR. reported in (2001) 8 SCC 22. However, the aforesaid observation has not been diluted by the Hon'ble Supreme Court. Therefore, still the ratio of the said judgment is a good law.
7.11 It may be noted that though this case pertains to Customs and Smuggling Act which is also an illegal activity. Carrying on business of narcotic drugs is also an economic offence. Thus both the Act pertains to economic offence. Therefore, we have to consider the aforesaid judgement which has been given in connection with Customs case. The principle laid down in that case also equally applies in this case also.
8. It may be noted that during the trial an application was given by the prosecution that the original register has been produced at Exh. 17 which is a register containing the secret information, page 2, entry 95; Exh. 18 diary of Police Station, page 45, entry 2; Exh. 19 Police Station muddamal pavti registered under No. 49 of 2000; Exh. 21 FIR book for 1999-2000 which were produced before the trial Court. As they were all original, the prosecution has taken back the same after producing xerox copy of the same. However, with a view to satisfy the conscious of this Court, original records Exh. 17, 18, 19, 28 etc. were called for. The learned A.P.P. has brought the same and this Court examined the same and after examining the same, this Court is satisfied that the prosecution has kept the records proper and the same inspired the confidence of this Court in this behalf.
8.1 It may be noted that after the arguments were over, the appellant filed an application dated 4.11.2004 before the Hon'ble the Chief Justice which was received by the office on 9.11.2004. However, due to the intervening Diwali vacation ultimately the matter was placed before this Court and on 30.11.2004 this Court directed that considering the application of the prisoner, the jail authority was directed to produce the applicant Ramdharisinh Bhamdarsinh before this Court with proper escort and all the medical case papers of the applicant on 3.12.2004. Thereafter, on 3.12.2004 the applicant remained present. We heard the applicant/appellant as well as the learned A.P.P. During the course of hearing he has stated that due to his old age he is not in a position to do daily work and is required to take help of other co-prisoners. On that day the concerned medical officer requested to give him some time to supply the requisite medical case papers and therefore the matter was adjourned to 7.12.2004.
8.1A Ultimately thereafter the medical officer produced medical report and certificate signed by the medical officer in which it has been stated that the petitioner had several ailments. He had undergone surgery from time to time. The certificate as well as the health report of the prisoner was also produced before us which we have gone through. The said report indicates that the petitioner looks very weak, his eye sight was also very weak. He had some problem regarding teeth also. Thereafter this Court passed order dated 7.12.2004.
8.1B All these have been shown and seen by us only with a view to see that when this Court considers the case of the appellant accused, the Court may have some consideration of the health of the accused while awarding the sentence.
8.1C However, we have considered the oral evidence as well as documentary evidence which we have discussed above and in our view the prosecution has clearly established its case by leading evidence. Thus, in our view, there is no question of raising any doubt in the case of prosecution and therefore the contention of the learned counsel for the appellant regarding benefit of doubt is rejected. Therefore, we are of the view that the appeal should be dismissed and the order of sentence passed by the learned trial judge should be confirmed.
8.1D We have considered the case of prosecution. We are of the view that prosecution has proved the case by leading oral as well as documentary evidence against the accused beyond reasonable doubt. We have also considered the judgement of the learned trial judge. The learned trial judge has given very cogent and convincing reasons to convict the accused. The learned advocate for the appellant has not been able to dislodge any of the reasonings given by the learned trial judge. However, learned Addl. Public Prosecutor has given additional reasons in support of the said judgement. We, therefore, dismiss the appeal of the appellant and accept the reasoning of the learned Additional Public Prosecutor.
8.2 For the foregoing reasons, the appeal is dismissed. The conviction of the appellant recorded under Section 8(c) read with Section 21 of the NDPS Act as well as punishment for the said offence is confirmed.
9. In the result, the appeal is dismissed. No order as to costs.