Gujarat High Court
Lakhiram Narandas Bawasadhu vs State Of Gujarat on 27 March, 2002
Equivalent citations: 2003CRILJ585
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. This appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgement and order dated 31st May, 1997 rendered by the learned Additional Sessions Judge, Banaskantha, at Palanpur, in Sessions Case No. 142 of 1996, by which the appellant is convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act' for short) and punished with imprisonment for 10 years and a fine of Rs. 1 lac (Rupees One lac Only), in default to undergo imprisonment for two years more.
2. On 1st May, 1996, in the early morning at about 3.30 a.m. to 4.00 a.m., the then District Superintendent of Police called the Police Inspector (LCB), Shri Vyas, and Police Sub Inspector (LCB), Shri R.P. Patel, at his residence and informed them that in a temple of Lord Shiva at Village Sherpura-Dhani, one Lakhiram Narandas Sadhu is keeping opium. On receipt of the information from the District Superintendent of Police, the Police Inspector and Police Sub Inspector came to the LCB office and then called the staff members of the LCB, two panchas and a person to weigh the substance. Then they went to Village Sherpura-Dhani by about 5.30 to 6.00 a.m. in the morning. The temple premises were searched and at that time, the accused in this case, Sadhu Lakhiram Narandas, was sitting on a cot. On search of the mattresses, from the pillow side, a plastic bag was found in which opium in a semi liquid form weighing 5 kilo and 20 gms. was found. A detailed panchnama was drawn. Opium for sample was taken and the same was sealed. The balance quantity of opium was also sealed. Thereafter, the Police Sub Inspector, Shri Patel, prepared a complaint and after completing the raid, the accused was taken to Agthala Police Station. On the basis of the complaint of Shri Patel - Police Sub Inspector, an offence bearing Crime Register No. 51 of 1996 was registered in Agthala Police Station. On completion of the investigation, the accused-appellant was chargesheeted for the offence punishable under Section 18 of the NDPS Act in the Court of the Additional Sessions Judge, Banaskantha, at Palanpur.
3. The learned Judge had framed charge at Exh.4 against the appellant for the offence punishable under Section 18 read with Section 29 of the NDPS Act. The charge was read over and was explained to the appellant, who pleaded `not guilty' to the same and claimed to be tried.
4. Therefore, the prosecution had examined (i) Abdul Gafar Haji Siddiqbhai Vora, PW-1, Exh.7; (ii) Faiz Mohammad Fate Mohammad Makrani, PW-2, Exh.11, Panch Witness; (iii) Dahyabhai Nagarbhai, PW-3, Exh.14, a person who was brought to weigh the substance; (iv) Ghasura Mohammad Yunus Rehamatkhan, PW-4, Exh.16, Talati-cum-Mantri, Sherpura Group Gram Panchayat; (v) Gulabbhai Hirabhai, PW-5, Exh.19, Head Constable; (vi) Sherkhan Anwarkhan, PW-6, Exh. 23, the constable who had taken the sample to the Forensic Science Laboratory, Ahmedabad; (vii) Kapildev Suryanath, PW-7, Exh. 26, Police Station Officer of Agthala Police Station; (viii) Pravinchandra Harilal, PW-8, Exh.27, "anami" police constable, one of the member of raiding party; (ix) Ramanbhai Pursottambhai Patel, PW-9, Exh.28, Police Sub Inspector, (LCB), Palanpur, a member of the raiding party and also complainant in the present case; and, (x) Indravadan Balkrishna Vyas, PW-10, Exh. 30, Police Inspector (LCB), Palanpur.
5. The prosecution had also produced documentary evidence such as a letter written by the Police Inspector (LCB), Palanpur to the Police Officer in charge, Agthala Police Station, dated 1st May, 1996, forwarding letter, F.S.L. report and other relevant documents. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his statement as required under Section 313 of the Code of Criminal Procedure, 1973. In his further statement, the appellant denied the case of the prosecution, but did not lead any evidence in support of his defence; that the case of the prosecution is false. The appellant submitted that he was falsely implicated in the case and hence, he should be acquitted.
6. On appreciation of the evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the appellant was found in possession of 5 kgs. and 20 gms. of opium and that he had committed offence punishable under Section 18 of the NDPS Act. The learned Judge concluded that it was proved by the prosecution that the mandatory provisions contained in Sections 41(2) and 42(1) were not applicable to the facts of the present case. After holding that the appellant had committed offence punishable under Section 18 of the NDPS Act, the learned Judge was of the opinion that under Section 18 of the NDPS Act, minimum sentence is of 10 years and a fine of Rs.1 lac and as in the present case, the Court is not inclined to award any punishment more than the minimum, hearing on the point of sentence is not required. The learned Judge, thereafter, punished the appellant as mentioned earlier by judgement and order dated 31st May, 1997, giving rise to the present appeal.
7. The learned counsel for the appellant submitted the following points for consideration of this Court :
a) The prosecution has not examined the most important witness in this case, namely, one Kamlesh Prabhuji Jat; he was the person in whose presence, the raid was carried out. The witness assumes more importance because of the fact that the appellant-accused is totally blind. It is the case of the prosecution that said Shri Kamlesh Prabhuji Jat happened to visit the temple at the time when the raiding party had reached the temple.
b) There are contradictory versions given by Shri R.P. Patel, Police Sub Inspector - complainant about said Shri Kamlesh Prabhuji Jat. At one stage, the Police Sub Inspector has stated that the statement of said Shri Kamlesh is not recorded but after recess, he has deposed that on verification of the case diary, he has noticed that statement of the said Shri Kamlesh was recorded, but it is not kept with the case papers;
The learned Advocate for the appellant, with all vehemence, submitted that it is shocking and surprising that said Shri Kamlesh is not even cited as a witness by the prosecution.
c) That the panch witnesses are declared hostile though they have not supported the case of the prosecution. The case of the prosecution is that the raid was carried out in the morning i.e after reaching Village Sherpura-Dhani, at about 5.30 to 6.00 a.m. One of the panch witness has stated that he was called at about 4.00 p.m. He has also stated that the raiding party had reached the temple in the evening. He has further stated that he had gone to Palanpur and while he was alighting from the bus, the Police Constable had come to call him and, therefore, he had to go back. His signatures were taken at that time.
The learned Advocate submitted that the other panch witness has stated that panchnamas of more than one cases were prepared at the same place and as he had an abdominal pain, he had gone to Deesa.
The learned Advocate submitted that from the totality of the evidence, it is borne out that the investigation is not free from doubt as Shri Vyas, Police Inspector (LCB), had demanded that the investigation be entrusted to Shri Patel, Police Sub Inspector (LCB)-2, by his letter dated 1st May, 1996. The learned Advocate has pointed out this fact from the deposition of the Police Sub Inspector, PW-7, Exh.26.
d) That the person, who was called to weigh the substance, Shri Dahyabhai Nagarbhai, PW-3, Exh.14, who is declared hostile, but then he has deposed that he was called at the police station where he had weighed the muddamal.
e) Last but not the least that, on the basis of the evidence, which has come on the record of the case, it cannot be said that the accused was in conscious possession of the opium.
The learned Advocate submitted that the accused is totally blind and the place from where it is alleged that the opium was found is, below the pillow on the cot on which the accused is stated to have been sitting at the time of raid. The learned Advocate submitted that the place is accessible to public at large as it is adjacent to the temple, which is visited by the members of public and, therefore, it cannot be hold that the appellant was in conscious possession.
The learned Advocate submitted that the entire raid was of doubtful character. It has come on record by way of deposition of the Police Sub Inspector, complainant, that a departmental inquiry was held against the officers of this raid by the higher authorities.
8. As is deposed by the PSI, Shri Ramanbhai Pursottambhai Patel, PW-9, Exh. 28, who was serving in Local Crime Branch (LCB), Banaskantha, at Palanpur, that on 1st May, 1996, he was called by the District Superintendent of Police at his residence by sending a "wardhi". When he reached there, Shri Vyas, Police Inspector (LCB), was also present. The District Superintendent of Police gave them the information that Sadhu Lakhiram Narandas of Temple of Lord Shiva at Village Sherpura-Dhani is having opium in his possession and is trading in the same. The District Superintendent of Police instructed them to carry out the raid. Thereafter, with the Police Inspector, he had gone to LCB office. At the office, he called other staff members of LCB. Head Constable, Mohammad Hanif, was asked to call panchas and also a person to weigh the substance. Mohammad Hanif had called two panchas, namely, Faiz Mohammad Fateh Mohammad and Gafarbava Haji Siddiqbhai. One Dahyabhai Nagarbhai was called to weigh the substance. These persons were called at the LCB office. The staff members, panchas and Dahyabhai Nagarbhai were informed about the raid. Preliminary panchnama was drawn between 4.15 to 4.30 a.m. He further deposed that at 4.30 a.m., in Government vehicles, he along with the Police Inspector, Shri Vyas, Head Constable, Rajabhai, Mohammadbhai Hanif, Hajaribhai, Police Constable-Pravinbhai Abadkhan, and Malabhai, Govindbhai with panchas and weighing man had left for Sherpura-Dhani. At about 5.35 a.m., they reached at the temple of Lord Shiva in Village Sherpura-Dhani. The main door the temple facing east was open. On entering the temple, one sadhu was found sitting on a cot in the "Osari". On enquiry, he stated his name to be Lakhiram Narandas Sadhu, a resident of Sherpura-Dhani. He also informed that he is blind. Meanwhile, a person came to the temple for "darshan". On enquiry, he stated his name to be Kamlesh Prabhuji Jat, a resident of Sherpura-Dhani. In his presence, the police, panchas, weighing man, etc., introduced themselves and also informed about the information received and that a raid is to be carried out. The accused was intimated that he can search the police personnel, panchas and the weighing man, through Kamlesh Prabhuji Jat, to which the accused said - `no'. The accused was also informed that he can have the search carried out by any higher gazetted officer or a magistrate or can ask them to be present, to which also the accused had said - `no'. Thereafter, the police, panchas and weighing man had searched each other. Nothing objectionable was found from any of them. Thereafter, keeping Kamlesh Prabhuji Jat present, the raid was started. On searching the matresses on the cot on which Lakhiram Narandas Sadhu was sitting, under the pillow, in a plastic bag, a heavy substance was found. The said plastic bag was opened before the panchas and black thick semi liquid substance in 5 different plastic bags was found. On opening of these bags and on smelling the same, it was smelling like opium and, thus, it was verified that the said plastic bags contain opium. On enquiry as to whether the accused was having any pass, or permit to possess this opium, he replied that he does not have any such pass or permit. The substance was weighed by Shri Dahyabhai Nagardas Patel, and the same was found to be 5 kgs and 20 gms. with plastic bags. Thereafter, from all plastic bags of opium, opium weighing 100 gms. was collected for sample and that sample was kept in a plastic bag and in that plastic bag, a chit containing the signatures of the panchas and Police Inspector was placed inside. Thereafter, the plastic bag was tied with a thread. It was then kept in a cloth bag and that was stitched with a thread. On that bag, a chit bearing the signatures of panchas and Police Inspector was placed. The same was tied with a thread and on that a wax seal with a mark of "P.I. LCB BK" in English was affixed. The remaining substance in five plastic bags was allowed to remain as it is and a chit bearing the signatures of the panchas and Police Inspector was placed. The said chit was tied with a thread and the said plastic bags were then placed in a white cloth bag, which was stitched and then sealed with a seal bearing mark "PI LCB BK" in English. The opium was valuing Rs.1,25,500=00, calculating at the rate of Rs.25,000=00 per kg. The Police Sub Inspector has further deposed that in the presence of Kamlesh Prabhuji Jat, panchas and police, when it was enquired from the accused, Lakhiram Narandas Sadhu, as to from where has he got this opium, he stated that one Krishnaram Vishnoy, whose father's name is not known to him, a resident of Village : Bokhatar (Rajasthan), had given to him and that he has also given opium to one Bhuraji Genaji of the same Village. On receiving this information, a separate note of this information was made for making a separate panchnama. The raid was continued of all the parts within the temple. No other objectionable substance, except the aforesaid substance, was found. The accused, Lakhiram Narandas Sadhu, was informed about the reasons in writing for causing his arrest. The deponent filed a complaint against the accused.
9. The learned Advocate for the appellant submitted that Shri R.P. Patel, PSI, has deposed in paragraph 7 of his deposition that on the same day, at three other places - at the place of Bhuraji Genaji Jat, Deepaji Hakmaji Jat and Tajaji Genaji Jat, raids were carried out and opium was recovered and Cases bearing No. 143 of 1996, 144 of 1996 and 145 of 1996 were filed, which are pending. Learned Advocate submitted that this witness has also deposed that during the period when he went to Ahmedabad for his training, the investigation of this case was with Police Inspector, Shri Vyas. The learned advocate also pointed out the contents of paragraph 14 of the cross examination of this witness-Shri R.P. Patel, PSI, wherein this witness has stated that, "..... I had noticed that Sadhu Lakhiram Narandas is blind with both eyes, that means, he is Surdas. It was also noticed that Sadhu Lakhiram is an old age person. I did not enquire as to whether due to the fact of Lakhiram being old, whether Seva puja in the temple is performed by any other person. I had inquired as to whether anybody else is residing in the temple, to which Sadhu Lakhiram had replied that nobody else is residing in the temple. Except Lakhiram, I had not recorded the statement of any other person in this regard. It is true that Kamlesh was a boy of young age. I had not recorded the statement of Kamlesh. On enquiry of the reason for which the statement was not recorded, I state that I had tried to search him in the Village, but I could not find him. I have made a mention to this effect in my case diary. In response to the query that the statement was not recorded at the time of raid, I say that as other procedure was on and as other information was received, other raid was carried out on the same day. Therefore, the statement could not be recorded on that day. I had gone to enquire about Kamlesh twice. I have not recorded the statement of either mother or father of Kamlesh or anybody else. It is not true that no person named Kamlesh was present there and that the name is got up one and, therefore, his statement is not recorded. On enquiring that persons elder to Kamlesh could have been called to which I reply that Kamlesh was about 17 years of age and, therefore, this was not felt necessary."
10. The learned Advocate for the appellant, then, pointed out the contents of paragraph 17 of the cross examination of this deponent, wherein, it is stated that, "On re-enquiry about the statement of Kamlesh, I state that during the recess, I had seen my case dairy and, it has come to my notice that I had recorded the statement of Kamlesh. I have not kept the statement of Kamlesh in the investigation papers and he is not cited as a witness in this case."
The learned Advocate also pointed out the contents of paragraph 22 of the cross examination of this witness, wherein, it is stated that, "After drawing panchnama of the raid, Exh. 8, a copy of it was not given to Sadhu Lakhiram. He has not recorded the statement of the accused to the effect that the accused is willing to have the raid carried out in presence of Kamlesh. A similar statement of Kamlesh was also not recorded at that time."
The learned Advocate then pointed out the contents of paragraph 23 of the cross examination of this witness, wherein, he has stated that, "He had not given any writing to Sadhu Lakhiram stating that whether he would like to have the raid to be carried out in the presence of the Gazetted Officer or a Magistrate. It is not true that a parallel investigation of this case was made by DIG, but DIG had recorded my statement. Allegations were made against the police in connection with this raid and in reference to these allegations, my statement was recorded, that is my belief. ...."
11. The Police Inspector- Indravadan Balkrishna Vyas, is examined as PW-10 at Exh.30, wherein, after narrating the fact that on 1st May, 1996, he was serving in LCB at Palanpur as Police Inspector, in the morning at about 3.00 a.m., on the basis of the information received by the District Superintendent of Police, he was called at his residence and it was informed to the deponent that in a temple of Lord Shiva at Village Sherpura-Dhani, Sadhu Lakhiram Narandas is keeping opium. The Police Sub Inspector (LCB), Shri Patel, was also called by the District Superintendent of Police in the same manner and he was also given the same information. The deposition, then, proceeds on the same lines as that of the Police Sub Inspector. The sealing part of the sample and substance is narrated in paragraph 2 of the deposition. The deponent has stated that the weighing man had weighed the substance and it was found to be 5 kgs. and 20 gms. From all packets, from all sides, by collecting some opium, about 100 gms. opium of was taken out as sample. The opium for sample was kept in a plastic bag and in that, a chit bearing the signatures of both the panchas and the deponent-Police Inspector, was kept. The bag was then tied with a thread and then, this plastic bag was kept in a cloth bag, which was, thereafter, stitched with a thread. Thereafter, a chit bearing the signatures of both the panchas and the Police Inspector was tied on that bag and wax seal bearing the mark in English, "LCB PIBK" was affixed on that chit. Thereafter, five bags containing the remaining substance were kept in a plastic bag and in that also, a chit bearing the signatures of the Police Inspector (deponent) and panchas was kept in it and thereafter, that plastic bag was tied with a thread. The same was kept in a white cloth bag and the same was stitched. Thereafter, on that a chit bearing the signatures of both the panchas and Police Inspector was tied on that and wax seal bearing mark, "PI LCB BK" in English was affixed on it.
12. In paragraph 7 of the deposition of this witness, he has stated that offence against the present accused was registered as Prohibition C.R. No. 51 of 1996 at Agthala Police Station. The investigation in this case was handed over to Police Sub Inspector (LCB), Shri R.P. Patel. At this stage, the learned Advocate for the appellant has pointed out a letter dated 1st May, 1996, Exh.32, which is written by the deponent Police Inspector (LCB), Palanpur to the officer in charge of Police Station, Agthala Police Station. It is stated therein that after registering the offence, the FIR and the accused is taken into custody, necessary entry is made in Arrest No./Lock-up register and after taking the muddamal as mentioned in the panchnama, the papers be returned to the Police Sub Inspector, Shri Patel, LCB-II for further investigation.
13. The officer in charge of Police Station, Agthala, Shri Kapildev Suryanath, is examined as PW-7, at Exh.26. He has stated in paragraph 3 that, ".... After the complaint was recorded, investigation of this complaint was given to the Police Sub Inspector, Shri R.P. Patel as per the order made by the Police Inspector (LCB), Shri I.B. Vyas. The order bearing mark 6/2, Exh.32, is the order made by the Police Inspector (LCB), Shri Vyas."
14. The prosecution has examined one Abdul Gafar Haji Siddiqbhai Vora at PW-1, Exh.7. He has stated that on 1st May, 1996, the Palanpur Police had called him in LCB office as panch. The Head Constable Mohammad Hanif had called him before 4.00 p.m. in the LCB Office. Another panch, Faiz Mohammad Makrani, was present there. Police personnel were also present there. The LCB inspector had informed him along with other persons that they are required to go for a raid at Village - `Sherpura-Dhani' of Deesa. The panch had gone in police vehicle to `Sherpura-Dhani'. Preliminary panchnama was drawn at LCB's Office. The deponent identifies his signature in the document bearing Mark 6/3. The deponent has then deposed that at 4.30 p.m., they had started from LCB office and they had reached Village Sherpura Dhani at about 5.45 p.m. They had gone to the temple of Lord Shiva in Sherpura-Dhani Village wherein there is an idol of God; persons were sitting there; temple had a compound wall; and, that the temple had two rooms. The priest was sitting on a cot in the temple. He is the same person, who was in the temple sitting on the cot, who is present as an accused. The learned Advocate submitted that despite the fact that the deponent does not support the panchnama, he is not declared hostile.
In paragraph 15 of the cross examination of this witness, it is stated that Mohammad Hanif had called him at 4.00 a.m. in the morning. We reached Sherpura-Dhani at about 5.35 a.m. in the morning. After reaching in the morning, until the panchanma procedure was completed, we had remained in the temple. In reply to a question as to whether I had a lunch, I say that we had taken refreshment at Palanpur. After reaching the temple, interrogation of the priest lasted for about 10 to 15 minutes. Thereafter, the raiding party started taking search and that lasted for about 10 to 15 minutes. After that, about half an hour was taken in drawing the panchnama. Sealing of muddamal sample etc. had taken about further half an hour. After the work of panchnama was over, I had returned to Palanpur. I had returned to Palanpur at about 11.30 or 12.00 noon. When I returned to Palanpur, thereafter, after about an hour, Constable, Mohammad Hanif, had came to me to call me. When he came, I was at the bus stand alighting from the bus, Mohammad Hanif had come to call me. I was alighting from the bus in which I had come from Sherpura. From the bus stand, I was taken in a jeep to Sherpura temple again. When I reached the temple, the police personnel were stitching the packet of alleged substance. When I went second time, at that time, my signatures were taken on slips and sealing was done.
The learned Advocate, then, pointed out the contents of paragraph 18 of the cross examination of this witness, wherein, he has stated that, "As my signatures could not be obtained, I was called back at the temple. When I was called back and I reached the temple, until it was dark, I was in the temple. The police personnel were writing. I do not know what they were writing. When my signatures were obtained, it was about 8.30 at night. Two signatures were left and they were obtained at this time. On the chits, which were applied on muddamal, my signatures were taken. ...."
15. The prosecution has also examined Faiz Mohammad Fateh Mohammad Makrani as PW-2 at Exh.11, another panch of the panchnama. He has stated that on 1st May, 1996, he was called by the Police in LCB Office as a panch. He was called in the morning at about 4.00 a.m. and that at 4.30 in the morning, he had left the LCB Office and reached Sherpura-Dhani Village at about 5.30 to 6.00 in the morning.
The learned Advocate for the appellant invited the attention of the Court to paragraph 7 of the cross examination of the said witness, wherein, he has stated that besides in the case of Bapji (the priest), I was also a panch witness to a panchnama in the case of Deepaji. I was not the panch witness to any other panchnama than this. The panchnama was prepared at about 2.00 p.m. in the noon. From morning 8.30 a.m. to 2.00 p.m., I was in Village Sherpura. I was sitting aside in the temple, as the papers were being prepared. Besides, panchnama work, the work of writing other papers was also continued in the temple till 2.00 p.m. in the noon. The case papers of the priest were being prepared. I do not know which other papers were written by the police. At 9.15 a.m. in the morning, panchnama of some other case than that of the priest was started. That panchnama was over at 12.15 p.m. I do not know about it. Besides the aforesaid panchnama, another panchnama was started at 4.45 p.m. and it was completed at 6.45 p.m. I do not know about that also. On that day, upto 8.30 p.m. I had stayed at Sherpura Village. Deepaji's Panchnama was completed at about 6.00 p.m. or 6.30 p.m. While the papers were being prepared, I had an abdominal pain and I had gone to Deesa. I do not know as to where the other panchas had gone. When I left for Deesa, the other panch was at Village Sherpura-Dhani. It is not true that Deepaji's panchnama was completed at 9.15 p.m. I had come back to Palanpur in the police vehicle. ..."
16. The prosecution has examined Dahyabhai Nagarbhai, PW-3 at Exh.14. He was called for weighing the substance. He has stated that on 1st May, 1996, in the morning at 9.00 a.m. or 10.00 a.m., a policeman had come to his shop to call him. With that man, he had gone to the LCB Office in Jorawar Palace. He was made to sit there and, thereafter, he had weighed some substance. What was that substance, he does not know. This witness is declared hostile.
17. Mr. Y.S. Lakhani, learned Advocate appearing for the appellant, submitted that from the aforesaid evidence, it is clear that the raid was carried out at Sherpura-Dhani in the premises which are claimed to be the part of the temple of Lord Shiva, to be precise, in an "Osari" of the rooms, behind the temple. He submitted that as is stated by the members of the raiding party, the door of the temple was open and on entering the temple, they found the accused-appellant sitting on a cot in an "Osari". Mr. Lakhani submitted that the said place is not a public place in its true meaning because the place raided was the place occupied by the accused-appellant. All members of public visiting the temple were not having a right to visit the residence of the priest of the temple. It is also on record that the accused-appellant was blind and therefore, it was not difficult for some miscreants to play mischief and place the contraband considering the place to be safe enough. The case of the prosecution is that on searching the matresses lying on the cot, on which the accused-appellant was sitting, the alleged substance was recovered from the pillow side. Mr. Lakhani submitted that Chapter 5 of the Act provides for procedure. Section 41 provides for power to issue warrant and authorisation. Sub.Section 1 of Section 41 provides that a Metropolitan Magistrate or a Magistrate of First Class or any Magistrate of Second Class, specially empowered by the State Government in this behalf, may issue a warrant. He submitted that in the present case as there was no question of issuing a warrant, the said Sub.Section-1 of Section 41 has no application, but Sub.Section-2 of Section 41 will have application. He submitted that under Sub.Section 2 of Section 41, an officer who is of Gazetted rank and who is empowered in this behalf by general or special order either by the Central Government, if the officer belongs to any of the Department of the Central Government, referred to in the Section or by the State Government, search a building, conveyance or place whether by day or night by himself or by authorising any officer subordinate to him, who is superior in rank to peon or sepoy or constable. The learned Advocate submitted that in the present case, the facts as they have come on record, the District Superintendent of Police had information. On receiving that information, the District Superintendent of Police called the Police Inspector and Police Sub Inspector and authorised them to carry out the raid. He submitted that while so doing, as is provided under Sub.Section 2 of Section 41, what is mandatory on the part of such Gazetted Officer is to take in writing the information given by any person, which is missing in the present case. He submitted that being a Gazetted Officer, and assuming for the sake of argument that he is also empowered by the State Government in this behalf, he could have carried out the arrest and search either himself or by authorising any officer subordinate to him, but then before that it was mandatory on his part to take down such information in writing. Mr. Lakhani submitted that had it been the case of the prosecution that the Gazetted Officer was having a personal knowledge and on the basis of that personal knowledge, he had reason to believe, matter would have been different, but in the present case, from the deposition of both the Police Inspector and Police Sub Inspector, it is clear that an information was received by the District Superintendent of Police and, therefore, that he had called the Police Inspector and Police Sub Inspector at his residence, and passed on that information to them and also directed them to carry out the raid.
The learned Advocate submitted that the Police Sub Inspector has deposed that on 1st May, 1996, when he was serving as Police Sub Inspector in LCB Branch at Palanpur, the District Superintendent of Police had called him at his residence by sending a "Wardhi". When he reached there, Police Inspector (LCB), Shri Vyas, was also present there. The District Superintendent of Police gave him the information that in a temple of Lord Shiva at Village Sherpura-Dhani, Sadhu Lakhiram Narandas is residing and he is having opium in his possession and he is trading in that. The District Superintendent of Police had instructed to carry out the raid. Thereafter, he and the Police Inspector, Shri Vyas, had gone to LCB's office.
The Police Inspector, Shri I.B. Vyas, PW-10, Exh.30, has also deposed to the same effect, namely, on 1st May, 1996, when he was serving as Police Inspector in LCB at Palanpur, at about 3.00 a.m. in the morning, the then District Superintendent of Police had called him at his residence and on the basis of the information received by him, had informed him that in the temple of Lord Shiva at Village Sherpura-Dhani, Sadhu Lakhiram Narandas is having opium in his possession.
18. Mr. Lakhani submitted that as is observed by the Honourable Supreme Court in the case of State of Punjab vs. Balbirsingh reported at AIR 1994 SC 1872, the purpose of enacting the provisions of Section 41 onwards is to provide a safeguard in view of the gravity attached to the offence so that an innocent person is not harassed. If an arrest or search contemplated under these provisions is to be carried out, the same can be done only by the competent and empowered Magistrate or Officers mentioned thereunder and that too, after following the procedure, which is laid down in these Sections. It is not required to be reiterated that the said procedure is mandatory and violation of that is to hamper the case of the prosecution. Any violation of the mandatory provision will vitiate the case of the prosecution and will result in the acquittal of the accused. For the ready reference, Sub.Section 2 of Section 41 is reproduced hereunder :
"(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place."
From the plain reading of the Sub.Section, it is clear that the Sub.Section empowers the Gazetted Officer or an officer, who is empowered by the State Government or the Central Government, as the case may be, to carry out the arrest, search of a building, conveyance or place whether by day or by night, either himself or by authorising any officer subordinate to him, but before this, there is a mandatory requirement of `taking down in writing the information', which is received by even such officer, on the basis of which, the person acts under this section. It is also clear from reading of this Section that the requirement of taking down the information in writing cannot be said to be a mere formality. The procedure prescribed of taking down the information in writing is with a purpose that veracity of such information can be checked by the Court in the event of matter going to the Court for trial. As this procedure provides a very important safeguard and, therefore, its violation is bound to result into acquittal of the accused if such an information is not recorded and not produced before the Court. In absence of any such information being recorded in writing, the veracity of such information cannot be ascertained. In the present case, this procedure part of taking down the information in writing is not complied with. Nothing is produced on record to show that the information received by the District Superintendent of Police was taken down in writing.
19. The other submission made by the learned Advocate regarding the investigation being carried out by the complainant himself, which is borne out from the deposition of Kapildev Suryanath, Police Station Officer of Agthala Police Station, who is examined as PW-7 at Exh.26. He has stated that a letter bearing Mark 6/2, which is Exh. 32, was given by Shri Vyas, Police Inspector, LCB, to him, whereby, he was asked to return the papers to the Police Sub Inspector, Shri Patel, after recording the FIR and after completing the other necessary formalities. Mr. Lakhani relied upon a decision of the Honourable Supreme Court in the matter of Megha Singh vs. State of Haryana reported in AIR 1995 SC 2339. He submitted that he is not unmindful of the fact that the judgement is under the Arms Act, but then, the proposition of law laid down by the Honourable Supreme Court is that, `the complainant should not have proceeded with the investigation'. He also relied upon another judgement of the Honourable Supreme Court in the matter of Bhagwan Singh vs. The State of Rajasthan reported in 1976 SC 985. He further submitted that following this judgement of the Honourable Supreme Court, the Rajasthan High Court has held in a matter under the NDPS Act that complainant should not proceed with the investigation. The learned Advocate submitted that when it is borne out from the deposition of the Police Station Officer that other Police Sub Inspector of Agthala Police Station was available and normal practice is that when a Police Sub Inspector, who is present in the Police Station, is to be handed over such investigation, there was no reason, for which the Police Inspector, Shri Vyas, should have insisted that the investigation should be assigned to the Police Sub Inspector, Shri Patel, of LCB, Palanpur. The judgement of the Rajasthan High Court in the matter between Nathiya & Anr. vs. The State reported in 1992(1) Crimes 537. It is also important to note that in paragraph 10 of the deposition of the Police Sub Inspector, it is stated that when that Police Sub Inspector had proceeded for training to Ahmedabad, investigation was kept by the Police Inspector, Shri Vyas, with him. This creates a cloud to the effect that these officers were interested to see that at all stages, investigation remains with either the Police Sub Inspector or Police Inspector. Normal rule of prudence is that a complainant should not himself be the investigating officer.
20. From the aforesaid circumstances, it transpires that both these officers were interested in the final outcome of the matter and possibility cannot be ruled out that the accused is implicated despite the fact that he is a blind person and was sitting on a cot which was in an "Osari" situated in the premises adjacent to the temple where number of persons have a free access and, therefore, the accused could not have been held to be in conscious possession of the contraband substance.
21. The learned Additional Public Prosecutor, Mr.Dave, tried to defend the judgement of the learned Additional Sessions Judge, Banaskantha, at Palanpur by stating that the learned Judge has rightly held that the provisions of Section 41(1) and 41(2) are not applicable to the facts of the present case as the raid was carried out in a public place. He could not pursue the Court successfully that the raid can be said to have taken place in the public place. He invited the attention of the Court to some portions of deposition of various witnesses, wherein, it is stated that at the time of raid, the accused was sitting on a cot, which was lying in the "Osari", which was adjacent to two rooms behind the temple. He also tried to submit that a temple being a public place, which is open for public, the learned Judge was right in holding that the raid is carried out in the public place and, therefore, the aforesaid provisions are not attracted in the present case.
22. From the evidence on record, it is more than clear that when the raiding party reached the place - a temple, the main door of it was open. Besides that, there was an "Osari" and adjacent to that, there were rooms. The accused was sitting on a cot in the "Osari" and he was residing at that place for last so many years, as is borne out from the certificate issued by the Panchayat authorities, which is produced at Exh.18. The certificate shows that the accused is residing in the same village for last about 25 years. Normal concept of the temple complex is that it consists of a temple and residence of priest and also his disciples, if any. If the evidence is read, as a whole, it is clear that the place which was searched by the raiding party was occupied by the accused and that it cannot be said to be an integral part of the temple. All the visitors, who visit the temple, do not visit the residential portion of the priest. Therefore, it is not possible for this Court to upheld the submission of the learned Additional Public Prosecutor that the raid was carried out in a public place and, therefore, provisions of Section 41 and 42 are not applicable. Taking into consideration the fact that the raiding party had raided the premises, which was in occupation of the accused, it was not a public place as it is not open for every member of public to have an access to that premises. If it is held that the place, which was raided is not a public place, then Sections 41 and 42 are applicable and once these Sections are applicable, mandatory requirement of `taking down in writing the information received', even by the Gazetted Officer, under Sub.Section 2 of Section 41, is required to be followed. As discussed hereinabove, such mandatory requirement is not followed and, therefore, there is a breach of mandatory provisions.
23. The learned Advocate for the appellant also submitted that there was a possibility of tampering with the sample which was sent to the Forensic Science Laboratory. He pointed out the relevant portion of Panchnama, deposition of two panch witnesses and F.S.L. report, wherein, when the sample was received, it was found in a brown paper cover. Exh. 36 is the F.S.L. report. It is mentioned that one sealed packet bearing mark "A" was a cloth bag in which there was a cover of brown paper in which there was a plastic bag in which there was a blackish and brownish substance of semi liquid nature. It weighed 100 gms with the plastic bag. It is further stated that from the said cover (brown paper cover is referred as cover whereas plastic bag is referred as bag), a chit was received on which signatures as aforesaid were found. In the panchnama, it is specifically mentioned in the panchnama that after taking out 100 gms of opium, the same was placed in a plastic bag. Thereafter, a chit bearing signatures of two panchas and police officer was placed inside that packet and thereafter, it was tied with a thread. Thereafter, that plastic bag was kept in a bag of white cloth and then, the said cloth bag was stitched. Thereafter, a chit bearing the signatures of the panchas and police officer was placed, by tying it on the cloth bag and it was sealed with a seal bearing inscription "PI LCB BK" in English. In this view of the matter, it is clear that the panchnama which was prepared at the time of raid has no reference of brown paper cover, which is specifically found in the F.S.L. report. This gives rise to a question as to whether the same sample had reached the F.S.L. or not. The Panchas, the Police Inspector and the Police Sub Inspector have deposed on the same lines about the taking of the sample. Besides PW6, Exh. 23, Sherkhan, has stated in his chief that he had taken 4 samples to F.S.L., Ahmedabad, on 3rd May, 1996 and he had handed over these samples with forwarding letters. From F.S.L., he was given four receipts. It is not true that he had taken the `mail book' with the samples and that he had obtained signature in that `mail book' while handing over the samples. In the cross examination, he has deposed that it is not true that he had taken `mail book' with the samples and that he had obtained signature in that `mail book' while handing over the samples to the FSL. He is confronted with his statement dated 12/06/1996 recorded by the Police Sub Inspector, wherein, he has stated that samples were handed over in F.S.L. and acknowledgment was taken in the `mail book'. Thus, there is contradiction on material point which creates a doubt as to whether the sample, which was sealed, had really reached to F.S.L. in the same condition or not.
24. The learned Judge has given much importance to the quantity of opium seized. He has not appreciated the evidence in true perspective while holding that the raid was carried out in a public place. He has also held that the accused was in conscious possession of the opium in question without appreciating that the raid was carried out in the "Osari", which is adjacent to two rooms, which are just behind the temple. The accused is totally blind and the substance found is in semi liquid form, which may not be noticed by a blind man if the same is kept below the pillow. Ignoring this fact, the weightage given to the large quantity and which lead the learned Judge to hold that the accused was in conscious possession of it, and that the provisions of Sections 41 and 42 are not applicable to the facts of the present case, has resulted in miscarriage of justice. In fact, the learned Judge ought to have appreciated that any person who wishes to hide such substance will find it to be very safe to hide such substance near a blind person, who cannot notice the same. More so, when the substance is in semi liquid form because when it is placed below the mattresses and the pillow, it will assume the same shape. This factor could not have been sidetracked. The learned Judge should have taken into consideration that the accused is not only old, but is totally blind. He is residing in Village Sherpura-Dhani for last 25 years and as it has come on record, is not having found to have any antecedent of this nature.
25. Thus, it is clear from the aforesaid discussion that the accused is totally a blind person, who is made to suffer to the ill-design of some other person. The raid, being in the premises which is in the personal occupation of the accused, cannot be said to be in the public premises and, therefore, Sections 41 and 42 are very much applicable.
26. In the present case, information is received by the District Superintendent of Police himself and as the same is obligatory on his part to take down the same in writing and as it is not taken down in writing, there is a breach of the mandatory requirement and on that ground alone, the case of the prosecution must fail.
27. For the foregoing reasons, the appeal succeeds. The conviction of the appellant recorded under Section 18 of the NDPS Act, as well as punishment imposed for the commission of the said offence in Special Case No. 142 of 1996 by the Additional Sessions Judge, Banaskantha, at Palanpur, dated 31/5/1997, is hereby set aside. The appellant-accused is to be released forthwith, if not required for any other offence. Muddamal be disposed of in terms of the directions given by the learned Additional Sessions Judge in the impugned judgement.