Gujarat High Court
Abdul Aziz Alimahmad Salebhai Sumra vs State Of Gujarat & ... on 3 March, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/332/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 332 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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ABDUL AZIZ ALIMAHMAD SALEBHAI SUMRA....Appellant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)/Respondent(s)
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Appearance:
MR AB VYAS, ADVOCATE for the Appellant(s) No. 1 - 2
MR EE SAIYED, ADVOCATE for the Appellant(s) No. 1 - 2
MS.P J.JOSHI, ADVOCATE for the Appellant(s) No. 1 - 2
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 03/03/2015
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellant-original accused, under Section 374 of the Cr. P.C., against the Judgment and order dated 21.02.2011 Page 1 of 14 R/CR.A/332/2011 JUDGMENT passed by the learned Special Judge (N.D.P.S.), Bhuj- Kutch, in Special Case (N.D.P.S.) No.01 of 2010, whereby the appellant-accused Nos.1 and 2 were convicted for the offence punishable under Sections- 20(b)(2)(c) and 29 of the Narcotic Drugs and Psychotropic Substance Act for the breach of Section-8(c) of the said Act and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1,00,000/-, in default of payment of fine, further rigorous imprisonment of 1 year. Whie appellant-accused No.3-Harun Kasam Sonara was acquitted for the alleged offence.
[2] According to the prosecution case, on 06.10.2009, while Shri Patel, Dy.S.P. was on his duty, he received one information that on 07.10.2009, two persons, resident of Suthari village of Abdasa Taluka i.e. Aslam Mamad Sumara and Abdul Aziz Sumara were going to deliver narcotic drugs on motorcycle at Mandavi. The said information was sent to higher officer by Mr. Patel amd called police personnels. On 06.10.2009, all the staff members including members of raiding party went to Bhuj in Government vehicle. On next day i.e. 07.10.2009, in morning, they went to Jubilee Circle of Mandavi and member of raiding party Police Inspector Mr. Chudasma arranged two panchas and they were informed about the information and they were ready to join the trap. So, search of the members of raiding party including panchas were carried out and no objectable article was found from them. Then, first part of the panchnama was drawn and Page 2 of 14 R/CR.A/332/2011 JUDGMENT signature of the panchas and Mr.Patel were obtained. Then, members of raiding party with the panch went to the place of trap and took the position. Then, one motorcycle came with two persons the driver of the motorcycle tried to stop the motorcycle and as the driver of the motorcycle accelerated the speed of motorcycle because of doubt of trap, at that time, they were caught by the members of raiding party. Then, name of both the persons were asked and they disclosed their name as Abdul Aziz Alimamad Sumra and Aslam Mamad Sumra, present appellants-accused herein. Then, one sack of while colour was recovered from the motorcycle (between two legs of Aslam Mamad) and thereafter, they were interrogated by Mr.Patel. Then Mr. Patel introduced himself and both the panchas and also told the appellants- accused that they could make search of the members of raiding party. Then, they made aware regarding their rights that whether they wanted to make search before the Gazetted Officer or Magistrate, to which they denied and they were given in writing. Then, physical search of the appellants-accused were made by the members of raiding party and from Abdul Aziz, one one driving licence in his name and one mobile of Nokia-1100 and from Aslam Mamad (pillion rider), one mobile of Nokia-1208 were recovered. Then, the said white sack was opened and from inside of the bag, one box was found containing 10 plastic packets. Out of 10 packets, on 8 packets, it was written as "Raghu Express Sweet Tomotto and Garlic Page 3 of 14 R/CR.A/332/2011 JUDGMENT Source-III Star Eat Up' and on reaming packets, three starts in round shape was embodied and something was written in different language. On verification, the said article was found as Charas and therefore, the officers of FSL were called at the place of raid. One Mr. K.R.Huda, FLS Officer came there and introduced with panchas. The said FSL Officer confirmed the said article as Charas and the same was weighed as 10 Kg and 19 gram worth of Rs.10,01,900/-.Thereafter, 50-50 gram sample was taken and sent for analysis. Then, motorcycle bearing No.GJ-12- L-6177 and muddamal articles recovered from the possession of the appellants-accused were seized and panchnama was drawn. Then, the accused were arrested and complainant was lodged by the complainant Shri Zala before the ATS Office, Ahmedabad. Thereafter, the investigation was carried out and statements of the witnesses were recorded. On receipt of the report of FSL, charge-sheet was filed against the appellant-accused Nos.1 and 2 for the offence punishable under Sections- 20(b)(2)(c), 8(c) and 29 of the Narcotic Drugs and Psychotropic Substance Act before the learned Special Judge (N.D.P.S.), Bhuj-Kutch, which was numbered as Special Case (N.D.P.S.) No.01 of 2010. After accused No.3 was also arrested and against him charge-sheet was filed.
[3] On the basis of above allegations, charge was framed against the appellant-accused vide Exh.6 and read-over and explained to the appellants-accused for the offences punishable under Sections-20(b)(2)(c), 8(c) and Page 4 of 14 R/CR.A/332/2011 JUDGMENT 29 of the Narcotic Drugs and Psychotropic Substance Act. Then plea at Exh.7 to 9 were recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined following oral evidences:-
Sr. Exh. Name of Witness
No.
1 12 Jaswantinsinh Himatsinh Zala
2 18 Dipa Indravadan Joshi
3 25 Dushyant Sureshbhai Vyas
4 28 Habib Ismail Meman
5 30 Harun Ganibhai Nadiadwala
6 31 Digvijaysinh Tapubha Chudasma
7 32 Kantibhai Ratansi Hudka
8 34 Ghanshyamsinh Anopsinh Sarvaiya
9 35 Divyesh Balkrushna Pawar
10 38 Dinesh Chhanabhai Patel
11 41 Gunvanbhai Keshubhai Barot
12 42 Manoj Keshavbharthi Swami
13 43 Jilubha Parbatsinh Vaghela
14 45 Jayantilal Jethalal Chaudhari
15 56 Sabbirali Mehmudali Saiyed
[5] In support of the prosecution case, the prosecution
has produced several documentary evidences like
Page 5 of 14
R/CR.A/332/2011 JUDGMENT
complaint at Exh.13, written document regarding
detention of accused at Exh. 19 etc.
[6] Thereafter, after filing closing pursis by the
prosecution, further statement of appellants-accused
under Section 313 of the Code of Criminal Procedure, 1973 was recorded. Appellant-accused Nos.1 and 2 disclosed that they are innocent and they have not committed any offence and were wrongly charge-sheeted and denied that muddmal were recovered from their possession. Accused No.3 admitted that he was not involved in the case and he was simply owner of the motorcycle and therefore, he was wrongly charge-sheeted. The appellants-accused have denied the case of the prosecution and submitted that a false case is filed against them.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge (N.D.P.S.), Bhuj-Kutch vide impugned judgment and order dated 21.02.2011 held the appellant-accused Nos.1 and 2 guilty to the charges levelled against them under Sections-20(b)(2)(c), 8(c) and 29 of the Narcotic Drugs and Psychotropic Substance Act, and convicted and sentenced them, as stated above and accused No.3 was acquitted by the learned trial Judge from the said alleged charge.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence of learned Special Judge (N.D.P.S.), Bhuj-Kutch, the Page 6 of 14 R/CR.A/332/2011 JUDGMENT present appellant-accused Nos.1 and 2 have preferred this appeal.
[9] Heard Mr.E.E.Saiyed, learned counsel for the appellant-accused and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent-State.
[10] Mr.E.E.Saiyed, learned counsel for the appellants- accused read the charge and argued that as per the charge, it is established that the contraband article was recovered from the lap of the pillion rider i.e. accused No.2 herein, but that is not proved through evidence of the panchas as well as members of raiding party. As far as the evidence of PW-1 Jaswantsinh Himatsinh Zala is concerned, he is interested witness and members of raiding party of ATS Office and he concocted the contents of the facts of search, recovery and memos which are issued to the appellants-accused. He contended that in cross-examination of this witness, it is established that seal was not properly affixed. He then contended that the prosecution examined PW-2 Dipak Indravadan Joshi at Exh.18 and PW-3 Dushyant Sureshbhai Vyas at Exh.25 as panch witnesses. He read the evidence of these witness and argued that they were independent witnesses and not police witnesses, who identified the muddamal and therefore, muddamal recovered from the possession of the accused create doubt and therefore, their evidence cannot be considered in favour of the appellants-accused. He then contended that looking to the defence made by appellants-accused, the same is required to be considered Page 7 of 14 R/CR.A/332/2011 JUDGMENT in their favour. He further argued that PW-4-Habib Ismail Meman was declared as hostile and prosecution could not prove any cogent evidence to establish the recovery from the accused persons. He then argued that from the evidence of PW-5 Harun Ganibhai Nadiadwala, the prosecution could not collect any supportable evidence and he also declared as hostile witness. He further read the evidence of PW-6 Digvijaysinh Tapubha Chudama at Exh.31 and contended that he was informed by Dy.S.P. Mr. Patel regarding the information received by him and in result of that, members of raiding party were informed and they all went to the place of trap in Government vehicle. He deposed to support the contents of panchnama, which is disclosed by the witnesses regarding recovery of the muddamal, search and seal, without any doubt. Mr. Saiyed, argued that this witness is interested and police witness. He then contended that defence made by the present appellants-accused was not considered by the learned trial Judge. He contended that the muddamal which was recovered from the possession of the accused also create doubt. He then argued that the defence has made proper probable defence in statement recorded under Section-313 of the Code of Criminal Procedure and and it is proved and established that the muddamal was not recovered from the possession of the appellants- accused. Lastly, he prayed to quash and set aside the judgment and order of conviction.
[11] Per contra, Mr.Hardik Soni, learned APP, read the Page 8 of 14 R/CR.A/332/2011 JUDGMENT charge and evidence of pancas and members of raiding party and complaint. He vehemently argued that as per the charge, the said contraband article Charas was recovered from the possession of accused Nos.1 and 2 on motorcycle. As against the argument made by Mr.Saiyed, learned advocate for the appellants-accused, Mr. Soni, argued that as both the accused persons came on motorcycle and when members of raiding party tried to stop them, appellant-accused No.1 accelerated the speed of the motorcycle and tried to run away, at that time, they were trapped by the members of raiding party and muddamal was recovered. Mr. Soni, further argued that in light of provision of Section-8 of the Indian Evidence Act, conduct of the present appellants-accused is required to be considered and the same creates doubt. It was in the knowledge of the appellants-accused that they were carrying illegal contraband article Charas. He then argued that both the appellants-accused were made aware regarding their search whether they wanted to search before the Gazetted Officer or Magistrate, to which they were refused. He then argued that during the search, from the possession of both the accused, mobile Phones of Nokia were recovered and then, motorcycle was seized. From the pillion rider seat, a sack was recovered, which was kept in lap of the accused No.2. He drew attention of the Court to Section-29 of the NDPS Act and contended that charge of abetment and criminal conspiracy and is also framed against the appellants-accused. As per the Page 9 of 14 R/CR.A/332/2011 JUDGMENT contents of the panchnama and evidence of the panchas, they are totally independent witness and they disclosed that they were invited by leader of the trap and police officer and they were also introduced by Dy.S.P. Mr.Patel with members of raiding party and both panchas were informed regarding the information and both were agreed to join with the members of raiding party. He then argued that the search was made out in presence of both the panchas and contraband article Charas in huge quantity was recovered from the possession of accused persons. Then, officer of the FLS was called at the place of trap and he identified the said article as Charas and samples were taken out in presence of panchas and contents of panchnama is proved through evidence of independent witness. Mr.Soni, then argued that mandatory provision of the NDPS Act is duly followed by the Dy.S.P. Mr. Patel, and both the accused persons were also informed regarding their rights in writing and arrest was made and learned Magistrate was informed by way of FIR in time. Mr.Soni, argued that through cross-examination, the prosecution could not establish the defence and could no prove that the prosecution has not followed the mandatory provision of law. He then argued that learned trial Judge has rightly considered that information received by Mr. Patel was reduced in writing and sent to the higher officer and in result of that, panchnama was carried out and during the search, muddamal was recovered and therefore, intention and knowledge of appellants-accused were established.
Page 10 of 14R/CR.A/332/2011 JUDGMENT When there is prima-facie case against the accused, learned trial Judge rightly convicted the accused persons and appellants-accused failed to establish their case. Lastly, he prayed to dismiss the appeal.
[12] I have perused the documentary as well as oral evidence produced on record. In this case, information was received by Mr.Patel, PI. I have minutely perused the evidence of Mr.Patel, PI, he disclosed that after receiving the information, the said information was sent to the superior officer of ATS in writing, which his also produced on record. Therefore, it can be said that the prosecution has followed mandatory provision of law. So, argument made by Mr.E.E.Saiyed, learned advocate for the appellants-accused that the information was not reduced to in writing and not sent the same to higher officer has no force. Further, I have perused the identification of both the accused in view of evidence of members of raiding party as well as panch witnesses. They have disclosed before the learned trial Judge that as per the information received by Mr.Patel, both the appellants-accused came at the place of trap on motorcycle and when members of raiding party tried to stop them, accused No.1-accused accelerated the speed of the motorcycle to run away from the place, at that time, they were trapped by the members of raiding party. Then, they were informed regarding rights of their search and the same is proved through oral version of panch as well as members of raiding party. Further, in writing, they were also informed Page 11 of 14 R/CR.A/332/2011 JUDGMENT whether they wanted to search themselves before the Gazetted Officer or before the Magistrate, to which, they refused. Then, search was made by Mr.Patel in presence of pancahs and muddamal charas in huge quantity was recovered and after the measurement, it was weighed as 10 kg. 19 garm. For the actual possession of the muddmal charas is concerned, it was argued by Mr.Saiyed, learned counsel that it was found in the laps of accused No.2 and therefore, it cannot be said that the same was in possession of accused No.1. I have minutely perused the evidence of the witness and it is proved that as per the direction given by Mr.Patel, members of raiding party tried to stop the motorcycle and accused No.1 tried to run away by accelerating the speed of motorcycle, which indicates that it was in knowledge of the accused No.2 with accused No.1 that they were carrying contraband article charas. Further, the samples which were obtained, measured and sealed in different samples and mark were also given to them, the entire procedure is fully supported by the evidence of members of raiding party as well as panch. In the cross-examination of FSL officer, it is disclosed by him that he made test and it was found that contraband article found from the possession of appellants-accused was charas. The said muddamal was sent to FSL and FSL officer has also followed the test and in result of the said test, opinion of the FLS is produced on record. The receipt of muddamal were also issued to both the accused and their family members were also informed and offence was Page 12 of 14 R/CR.A/332/2011 JUDGMENT registered at ATS Office. It was the basic argument of Mr.Saiyed, learned counsel for the appellants-accused that there was no evidence to show that the complaint was registered through e-mail. I have perused the complaint, wherein, it is mentioned that through e-email, the complaint was sent to the Police Station and the same was registered. As far as seizure and sealing is concerned, Mr.Saiyed, argued at length that sealed were not found in proper manner, but in the ravangi note, it is mentioned that writer head Mr.Gunvantbhai Keshubhai Barot sent the muddamal to FSL and that was properly sealed and received by the FSL. In result of the same, report was issued to the Investigating Officer, wherein, it is mentioned that 20 packets were received in properly sealed and the same were intact. After examination of the muddamal packets, all were repacked and resealed by the FSL and sent to ATS Office. During this procedure, original seal and sample was compared by the authority of FSL, which was found legible and intact position. During the cross-examination of the witnesses, when the muddamal were opened before the panchas as well as members of raiding party, it was identified by the panch and members of raiding party. I have minutely perused the cross- examination made by the defence counsel to all witnesses. It was not the case of the defence that muddamal which was shown as charas was recovered from the possession of accused persons. It is proved and established that charas was found from the possession of Page 13 of 14 R/CR.A/332/2011 JUDGMENT accused and procedure of sealing and seizing is also proved and supported by the report of FSL and therefore, learned trial Judge has rightly convicted the appellants- accused. It is not argued by Mr.Soni, learned APP that learned trial Judge acquitted the accused No.3 from the alleged offence, but fairly admitted that the State has never filed any acquittal appeal against the said order of conviction. I have found that the prosecution has followed the mandatory provision of law and allegation made in the charge is proved. In view of the above observation, learned trial Judge has rightly considered the ingredients of the alleged offence. I have not found that learned trial Judge has committed any grave error to convict the present appellant-accused. In the result, I am in full agreement with the judgment and order of conviction of the learned Trial Court.
[13] In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 21.02.2011 passed by the learned Special Judge (N.D.P.S.), Bhuj-Kutch, in Special Case (N.D.P.S.) No.01 of 2010, is hereby confirmed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.) siddharth Page 14 of 14