Gujarat High Court
The State Of Gujarat vs Julfukar @ Julu Batko Ahmed Hussain on 27 March, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1093/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1093 of 2005
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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THE STATE OF GUJARAT....Appellant(s)
Versus
JULFUKAR @ JULU BATKO AHMED HUSSAIN
SAIYED....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP,for the Appellant(s) No. 1
MR H AHMED, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 27/03/2015
ORAL JUDGMENT
[1] The present acquittal Appeal has been filed by the appellant-original complainant, State of Gujarat under Section 378 of the Cr. P.C., against the Judgment and order dated 04.02.2005 rendered by the learned Principal Page 1 of 14 R/CR.A/1093/2005 JUDGMENT Sessions Judge, Ahmedabad City, Ahmedabad, in Sessions Case No.294 of 2003. The said case was registered against the present respondent-original accused for the offence under Sections-8(c), 21 and 22 of the Narcotic Drugs and Psychotropic Substance Act.
[2] According to the prosecution case, the respondent- accused was selling contraband article Charas near Behrampura Somnathnagar Char Rasta, school Nos.5 and 6 without pass or permit and he was caught red handed on the raid being carried out in pursuance of the information received by the Investigating agency. When search of the person of the accused was carried out, he was found to be in possession of 250 ml.gms of Charas and the muddamal currency notes of Rs.100/-and thereby the accused committed the offence punishable under Sections-8(c), 21 and 22 of the NDPS Act. The complaint was given by Mr.G.N.Zala, Senior Police Inspector of the Gaekwad Haveli Police Station and on the basis of the complaint, the offence was registered against the accused bearing Prohibition C.R.No.5078 of 2003 in the Gaekwad Haveli Police Station. The report was prepared under Section-157 of the Code of Criminal Procedure and forwarded to the higher officer. The information which was received by the police Inspector Mr.Zala was also forwarded to the Higher Officer. The statement of the accused was recorded. The muddmal which was seized was sent to FSL for the purpose of analysis. Before seizure of the muddamal, the panchnama of the same was Page 2 of 14 R/CR.A/1093/2005 JUDGMENT prepared by the Investigating Officer. Thereafter, the accused was detained on 12.07.2003 and was released subsequently in pursuance of bail passed by Ahmedabad City Sessions Court on 15.10.2003.
[3] On the basis of above allegations, charge was framed vide Exh.1 and read-over and explained to the accused for the offence punishable under Sections-8(c), 21 and 22 of the Narcotic Drugs and Psychotropic Substance Act. The accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined seven oral evidences :-
Sr. Ex Name of Witness No. h 1 6 Amarnath Paramhans Tiwari 2 8 Babubhai Virsinhbhai 3 9 Rupesh Vimalkumar Shah 4 11 Firojkhan Mohammedkhan 5 15 Hanvatsinh Pratapsinh Rathod 6 17 Zatubha Amarsinh Chudasma 7 21 Ghanshyamsinh Nirubhai Zala
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh. 22, the report prepared under Section- 157 of the Cr.P.C. at Exh.18, the information forwarded to the Higher Officer at Exh.23, the Resolution with regard to Page 3 of 14 R/CR.A/1093/2005 JUDGMENT the search of the accused at Exh.25, the report prepared by PI to call the officer from the FSL at Exh.26, the certificate given by the person who wight the muddamal at Exh.10, the seizure memo at Exh.27, the memo of detention of accused at Exh.28, panchanma of raid at Exh.29, report of the successful raid at Exh.30, note sent to FSL at Exh.12 and receipt given by the FSL vide Exh.13 and the covering letter of the FSL vide Exy.19 and analysis report given by the FSL at Exh.,20.
[6] Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused person admitted that he was innocent and false complaint has been filed against him. Further, he denied the case of the prosecution and submitted that a false case is filed against him.
[7] Then, arguments of both the parties were heard. Learned trial Judge observed that prosecution failed to prove its case beyond reasonable doubt. From the evidence of the complainant, witnesses and panchas, it was proved before learned Judge that the prosecution did not follow the mandatory provisions of NDPS Act. After considering the defence version of the respondent- accused, the learned Judge acquitted the respondent- accused from the alleged charge levelled against him.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 04.02.2005 rendered by the learned Principal Sessions Judge, Page 4 of 14 R/CR.A/1093/2005 JUDGMENT Ahmedabad City, Ahmedabad, in Sessions Case No.294 of 2003, the appellant-State has preferred the present appeal before this Court.
[9] Heard Ms. Hansa Punani, learned additional Public Prosecutor the appellant-State and Mr. H. Ahmed, learned counsel for the respondent-accused.
[10] Ms. Hansa Punani, learned additional Public Prosecutor the appellant-State contended that from the contents of the complaint of Police Inspector Mr.G.N. Zala, at Exh.22, the report prepared under Section-157 of the Code of Criminal Procedure at Exh.18, as per the mandatory provision of law the information was sent to the Higher Officer at Exh.23 and search was made vide Exh.25. The above documentary evidences show that mandatory provision of law was followed by the Investigating Agency and FLS Officer also certified at Exh.26 that muddamal Charas was recovered from the possession of the respondent-accused. She further read the evidence of independent person, who issued the certificate of weight and measurement of the contraband article Charas at Exh.10 so also read the seizure memo at Exh.27 and contents of detention memo at Exh.28. Panchnama of raid at Exh.29 is proved through oral version of the panch witnesses. She then contended that report of successful raid carried out by the Trapping Officer at Exh.30 gets substantiated through evidence of members of raiding party. She then argued when the respondent-accused was going to sell contraband article Page 5 of 14 R/CR.A/1093/2005 JUDGMENT Charas near Behrampura Somnathnagar Char Rasta, school Nos.5 and 6 without pass or permit, he was caught red handed and thereby, he violated the provision of Sections-8(c), 21 and 22 of the NDPS Act and therefore, the prosecution has proved its case beyond reasonable doubt and wrongly acquitted the respondent-accused from the alleged charge levelled against him. Lastly, she prayed to set aside the judgment and order of the learned trial Judge and allow the appeal.
[11] Mr.H. Ahmedd, learned counsel for the respondent- accused read the contents of the complaint and panchnama so also the evidence of the Trapping Officer. He vehemently argued that evidence of the independent witnesses is not trustworthy, acceptable and reliable. He then argued that from version of all the witnesses, the prosecution could not prove that the contraband article Charas was recovered from the possession of respondent- accused. He contended that mandatory provision of law was not followed. He contended that it is the duty of the prosecution to establish that under the guise of conspiracy made by all the respondents-accused, muddamal article Charas was recovered from the possession of respondent- accused. Mr. Ahmed, contended that learned trial Judge rightly observed that case of the prosecution is covered under the cloud of doubt and facts of the prosecution case as narrated by the witnesses, also create some doubt. He submitted that prosecution has examined 7 witnesses and produced documentary evidence with a view to prove the Page 6 of 14 R/CR.A/1093/2005 JUDGMENT involvement of the accused in the commission of offence. The accused, as per the prosecution case, caught red handed while selling the contraband article Charas near Behrampura Somnathnagar Char Rasta on 22.06.2003. The information was received by PI Mr.G.N.Zala, of the Gaekwad Haveli Police Station and in pursuance thereof panch witnesses were called and raid was carried out at the place for which he had received the information. On reaching the place, the accused was found to be in possession of the contraband article Charas and on the search being carried out, two tablets of Charas were recovered. Officer from the FSL was called on the spot to conduct the examination of the two tablets recovered from the accused. The person weighing the muddamal was also called and the tablets were weighed in presence of panch witnesses. He then contended that on weighing the muddamal article, it was found to the tune of only 250 mili grams which was minimum than the small quantity as prescribed under the provisions of NDPS Act. The small quantity as per the provisions of the Act is 100 grams and the commercial quantity is prescribed as 1 kg. The tablet of Charas of 250 mili gram is even less than 100 grams. Therefore, it is less than the small quantity as prescribed under the Act. He then contended that no doubt the prosecution has examined 7 witnesses and produced documentary evidence to prove the involvement of the accused in the commission of offence, but since the muddamal article Charas which was recovered from the Page 7 of 14 R/CR.A/1093/2005 JUDGMENT possession of the accused was even less than the small quantity, the accused is liable to acquitted forthwith in the matter. In last, he prayed to dismiss the appeal.
[12] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witnesses-complainant and also perused the charge framed against the respondents- accused. I have also considered the submissions made by learned advocates for the parties.
[13] The learned trial Judge has observed in judgment and order in para-10 and 11, which reads as under:-
"10. The learned advocate representing the accused submitted that prosecution has examined 7 witnesses and produced documentary evidence with a view to prove the involvement of the accused in the commission of offence. The accused, as per the prosecution case, caught red handed while selling the contraband article CHARAS near Behrampura Somnathnagar Char Rasta on 22.06.2003. the information was received by PI Mr.G.N.Zala, of the Gaekwad Haveli Police Station and in pursuance thereof panch witnesses were called and raid was carried out at the place for which he had received the information. On reaching the place, the accused was found to be in possession of the contraband article CHARAS and on the search being carried out of his person, two tables of CHARAS were recovered. Officer from the FSL was called on the spot to conduct the examination of the two tablets recovered from the accused. The person weighing the muddamal was also called and the tables were weighed in presence of panch witnesses. However, the learned advocate submitted that on weighing the muddamal article, it was found to the tune of Page 8 of 14 R/CR.A/1093/2005 JUDGMENT only 250 mili grams which was minimum than the small quantity as prescribed under the provisions of NDPS Act. The small quantity as per the provisions of the Act is 100 grams. and the commercial quantity is prescribed as 1 kg. the tablet of CHARAS of 25. m. gms is even less than 100 gms. and therefore, it is less than the small quantity as prescribed under the Act. The learned advocate submitted that prosecution has not doubt examined 7 witnesses and produced documentary evidence to prove the involvement of the accused in the commission of offence, but since the muddamal article which was recovered from the possession of the accused was even less than the small quantity, the accused is liable to acquitted forthwith in the matter.
11. I have taken into consideration the rival submission and perused the oral deposition as well as the documentary evidence on which heavy reliance is placed by the prosecution to prove the case against the accused. I have also carefully considred the judgments cited by the learned APP and there is no dispute about the ratio or the proposition laid down in those judgments. The prosecution has examined 7 witnesses and produced the documentary evidence to prove the guilt of the accused and to establish each and every line connecting the accused with the commission of offence. The information was received by Mr.G.N.Zala, PI who was working in the Gaekwad Haveli Police Station on 12.06.2003 in pursuance thereof he went to Bhhrampura Somnathnagar Char Rasta near school n.5 and 6 along with the raiding party and nabbed the accused. On the search being carried out of the person of the accused, he was found in possession of two tablets of CHARAS which is in violation of provisions of Sections 8(c), 21 and 22 of the NDPS Act. The prosecution has examined 7 witnesses with a view to prove the involvement of the accused in the commission of offence and on the bare perusal of the depositions and the documentary evidence, it becomes clear that the muddamal Page 9 of 14 R/CR.A/1093/2005 JUDGMENT article CHARAS i.e. two tablets which was seized from the person of the accused, weighed to the extent of only 250 ml.gms which is admittedly less than small quantity as prescribed under the NDPS Act. I have perused the Notification bearing No.SO- 1055(E) dtd. 19-11-2001 issued by the Ministry of Finance Department of Revenue and more particularly at serial no.23 wherein the small quantity of CHARAS has been mentioned as 100 gms. and commercial quantity of CHARAS has been mentioned as ONE KG.. The accused was found in possession of 250 ml. Gms. of CHARAS and only two tablets were recovered from his possession. As per the prosecution case he was selling CHARAS to the customers and therefore sale itself is also in violation of the provisions contained in Section 8(c) of the NDPS Act. Thus, admittedly the accused was in possession of CHARAS which was less than small quantity as prescribed under the provisions of NDPS Act. The charge against the accused has been framed vide exh.1 for the offence punishable under Sections 8(c), 20 and 21 of the NDPS Act. The charge against the accused has been farmed for the offences punishable under sections 8(c), 21 and 22 of the NDPS Act. If we peruse certain section 8(c0 of the NDPS Ac then it prohibits certain operations and it is stated therein that no person shall produce, manufacture, possess, sale, purchase, transport, wharehouse, use, consume, import inter-state, export inter-state, import into India, export from India or tranship any narcotic drugs and psychotropic substance for medial and scientific purpose and in the manner and to the extent provided by the provisions of this Act or the Rules or Orders made thereunder. The accused, as per the prosecution case, was selling CHARAS to the customers. This aspect has not been proved by the prosecution in a conclusive manner as the accused was found in possession of only two tablets of CHARAS weighing 250 ml. gm. which is less than even small quantity as prescribed under section 2(xxiiia) of the NDPS Act. The prosecution is required to establish that Page 10 of 14 R/CR.A/1093/2005 JUDGMENT accused was found in possession of contraband article CHARAS and he was selling the CHARAS by adducing cogent, convincing and conclusive evidence ad in the facts and circumstances of the present case, the prosecution has miserably failed to prove that aspect. If we peruse amended section 21 then it mentions that if the quantity which is seized is a small quantity then punishment prescribed therein is RIGOROUS IMPRISONMENT for a term which may extend to SIX MONTS or a fine which may extend to Rs.10,000/- or with both. The amended section 21 clearly mentions that if the quantity which is seized is a small quantity then the punishment prescribed therein is Rigorous Imprisonment for a term which may extend to SIX MONTHS or a fine which may extend to Rs.10,000/- or with both. The second category of the seizure is with regard to the quantity lesser than the commercial quantity but greater than the small quantity and in such circumstances, the imprisonment prescribed therein is rigorous imprisonment for a term which may extend to 10 years and with a fine which may extend to Rs.1/- lac. Similarly in the third category where the commercial quantity is defined, the imprisonment prescribed therein is not less than 10 years but may extend to 20 years and shall also be liable to fine which shall not be less than Rs.1/- lac but which may extend to Rs.2/- lacs. Similarly if we peruse section 22 of th NDPS Act then it also prescribes the punishment for the contravention in relation to manufacture drugs or preparation in respect of the small quantity, the quantity lesser than commercial quantity but greater than the small quantity as well as commercial quantity has been specifically mentioned. In view of the discussion hereinabove, the quantity of CHARAS which was recovered from the possession of the accused was even less than the small quantity and since the prosecution has not proved in a conclusive manner that accused was manufacturing, producing or selling CHARAS-tablets to the customers, it would be hazardous to convict the accused for the offence Page 11 of 14 R/CR.A/1093/2005 JUDGMENT punishable under sections 8(c), 21 and 22 of the NDPS Act. The prosecution, has in order to prove the involvement of the accused in the commission of offence, placed heavy reliance on the oral depositions and the documentary evidence but if the entire gamut of oral depositions and documentary evidence is perused in proper perspective then the main charge of the prosecution that accused was found in possession of CHARAS and he was selling the same to the customers, has not bee proved beyond all reasonable doubt. It is incumbent upon the prosecution to prove the charge levelled against the accused and the entire line connecting the accused with the commission of offence. Even if one of the links is missing or the chain is not established by the prosecution then the benefit of same is required to be given to the accused. Even on that count, the accused is liable to be acquitted because the prosecution has, as per my discussion hereinabove, miserably failed to prove that he was selling CHARAS to customers or doing the production or manufacturing of CHARAS with a view to sell the same to the customers. In the light of the foregoing discussion, the prosecution has miserably failed to prove the inextricable involvement of the accused in the commission of offence for which he has been charged under Sections 8(c), 21 and 22 of the NDPS Act. "
[13.1] I have perused the above observation and reasons of the learned trial Judge. It is evident that learned trial Judge has rightly acquitted the respondent- accused from the charge levelled against him. I am not satisfied with the arguments made by Ms.Hansa Punani, learned Additional Public Prosecutor for the appellant- State and I am in complete agreement with the judgment and order of the learned trial Judge. There in no substance in the appeal. Though learned Additional Public Prosecutor Page 12 of 14 R/CR.A/1093/2005 JUDGMENT has tried to establish her case, but the Court has not found any sufficient evidence to consider and entertain this appeal.
[14] In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
[15] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers Page 13 of 14 R/CR.A/1093/2005 JUDGMENT which this Court may exercise against an order of acquittal are well settled.
[16] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 04.02.2005 rendered by the learned Principal Sessions Judge, Ahmedabad City, Ahmedabad, in Sessions Case No.294 of 2003, acquitting the respondent-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth Page 14 of 14