Gujarat High Court
State Of Gujarat vs Lodai Munnat Harijan & ... on 21 April, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Vipul M. Pancholi
R/CR.A/209/1993 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 209 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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STATE OF GUJARAT....Appellant(s)
Versus
LODAI MUNNAT HARIJAN & 1....Opponent(s)/Respondent(s)
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR.MRUDUL M BAROT, ADVOCATE FOR HCLS COMMITTEE for the
Opponent(s)/Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 21/04/2015
JUDGMENT
Page 1 of 11
R/CR.A/209/1993 JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is filed by the State challenging judgement of acquittal rendered by learned Sessions Judge, Valsad in Sessions Case No. 111 of 1990. The respondent-accused were charged with offences punishable under Section 20(B) of the Narcotic Drugs and Psychotropics Substances Act ['NDPS' for short]. As per the prosecution, on a prior intelligence, police party, led by PSI Vrajkant Govind Jha, PW 4 Exh 14, raided the area at the botanical garden at Saputara Road, near Vaghai in the afternoon at about 4 O'clock. They saw two persons coming. Each person was carrying a black plastic bag. The raiding party could arrest accused No.1 at the spot. Accused No.2 ran away dropping the bag. Upon search, it was found that both the bags contained ganja which was, later on, weighed and found to be 5 kilos and 4 kilos respectively. The samples taken from each bag were sent for laboratory testing. Bags were sealed and kept in custody. The FSL confirmed that the substance was ganja.
2. Charge accordingly was framed at Exh 10 alleging that, on 18.10.1990, at about 16 hours, the accused were carrying 5 kilos and 4 kilos ganja respectively near botanical Page 2 of 11 R/CR.A/209/1993 JUDGMENT garden. They, therefore, committed offence punishable under Section 20(B) of the NDPS Act.
3.Chhaganbhai Mohanbhai, PW 1 Exh 9 was the panch-witness to the said raid. Though he admitted his signature on the panchnama Exh 10, did not support prosecution and claimed that he had merely signed a blank document at the request of the policeman who obtained his signature at the lorry near the bus station, where he was sitting.
4.Ashokkumar Dhansukhlal, PW 2 Exh 11 was the other panchwitness of the same panchnama. He also turned hostile. He denied that he was called as the panch-witness by the police or that accused No.1 was arrested in his presence. He denied that the police had recovered any substance in his presence. He stated that his signature was obtained by the police at his pan shop. He signed the document without reading the contents.
5. The panchnama Exh 10 records that the police party proceeded from Vaghai Police Station on a prior intelligence. They arrived at botanical garden, Saputara Road and waited in a cordon. Soon two persons came from the Page 3 of 11 R/CR.A/209/1993 JUDGMENT opposite direction, each carrying a plastic bag. One of them dropped the bag and ran away. The other was caught. His name was Lodai Munnat Harijan, accused No.1. He gave the name of the other accused, who ran away as Pravin Gamit. Upon inspection of the substance in the bag, it was found to be ganja. Upon weighing, it was found that the bags had 5 kilos and 4 kilos of the said substance. Samples were taken and sealed.
6.Balubhai Mavjibhai, PW 3 Exh 13 was the constable posted at Vaghai Police Station at the relevant time. As per his deposition, on 18.10.1990, when he was on duty, at 2 O'clock in the afternoon, Police Inspector, Mr. Jha came there and took him and other constables in his jeep for raiding since he had prior information. They came near botanical garden and waited there. During this time, two persons came from Saputara road carrying plastic bags in their hands. One of them, upon seeing the police, started running. Head Constable Narottam shouted saying that "Pravin stop". He, however, did not stop. They could catch the other person i.e. accused No.1. He then described the procedure adopted by the police party of weighing and taking the samples of the substance and sealing the bags.
Page 4 of 11R/CR.A/209/1993 JUDGMENT In the cross examination, he agreed that
botanical garden was a tourist place and was frequented by many people. He, however, volunteered to add that it was not so popular at that time. He admitted that government staff would be present in the botanical garden which would also include the superintendent. Throughout the working day, people would be present in the botanical garden though their houses were outside. On the road, near the botanical garden, there would be movement of many people.
He further stated that they had laid the cordon in such a way that the person could not run away. He did not know accused No.2 before the incident. He had seen him for the first time after that before the Court. He agreed that on each bag, a slip containing name of the person from whom such bag was recovered, was affixed. However, in the muddamal articles before the Court, the bags did not have such slips. The threads with which the bags were tied were also missing. He stated that when the statements were being recorded, besides the six policemen and Mr.Jha, no other person was present.
7. Vrajkant Govindbhai Jha, PW 4 Exh 14 deposed Page 5 of 11 R/CR.A/209/1993 JUDGMENT that, at the relevant time, he was PSI stationed at Vaghai Police Station. He went to the police station at 2 O'clock in the afternoon and took police personnel with him for raiding. They came near botanical garden. Two people came from opposite side carrying sacs. They could catch one of them. Person behind, dropped the bag and ran away. When they opened the sacs, they found that there was ganja inside. They weighed the substance and took the samples for analysis. Panchnama Exh 10 was drawn in his presence. Accused No.2 was arrested on 25.10.1990.
In the cross examination, he denied that unclaimed articles were being passed on in the name of the accused. He had himself prepared panchnama Exh 10 and 12 and recorded the statements of all the witnesses. He had also arrested the accused and sent the muddamal articles for forensic analysis. He denied that FIR Exh 15 was recorded at the spot. He insisted that the same was recorded at the police station. He denied that the names of the panch-witnesses were not mentioned in the FIR not because they were not present. He, however, agreed that none of the witnesses had given the names of the panchas in their statements. Before the Page 6 of 11 R/CR.A/209/1993 JUDGMENT incident, he did not know accused No.2. Only when beat constable told him that it was Pravin who ran away, he learnt about his name and that is why he mentioned the name of the accused in the FIR. He denied that during this procedure, many people were present in the garden and also gathered at the scene of the incident.
8. The FSL report Exh 80 confirmed that the samples sent for analysis were ganja, a psychotropic substance. We may also record that Exh 12 was the panchnama of the search of the house of accused No.2 during which, neither the accused nor any illegal substance was found from his house.
9. This, in the nutshell, is the evidence on record. The learned Judge, upon assessment of evidence, gave benefit of doubt to the accused and acquitted them. He noted certain discrepancies and the fact, that the raiding officer had also carried out the investigation. Inter alia on such grounds, the acquittal was recorded.
10. We may assess the evidence. As noted earlier, both the panch-witnesses to panchnama Exh 10 turned hostile. These witnesses did not Page 7 of 11 R/CR.A/209/1993 JUDGMENT support the prosecution and claimed that the signatures were merely obtained by the police. PW 1 claimed that he was made to sign a blank paper at his lorry outside the garden whereas PW 2 claimed that he was made to sign a prepared document which he had not read. He was, at that time, at his pan shop. In absence of any independent witnesses supporting the drawing of the panchnama Exh 10, the learned Judge rightly did not place any reliance on the same. It has also come on record that neither in the FIR nor in the statements of any of the persons recorded during the course of investigation, the names of panch-witnesses were cited. This would further lend credence to the statements of these panch-witneeses that they were not present during the entire exercise of raid but, their signatures were obtained later on. The theory of the prosecution that these panchas were present when the raid was conducted and, in their presence, accused No.1 was arrested and the two bags containing the psychotropic substance were recovered would thus be highly doubtful.
11. Additionally, we also notice that the prosecution had examined only two witnesses. Both were police personnel, members of the Page 8 of 11 R/CR.A/209/1993 JUDGMENT raiding party. Balubhai PW 3 and Varjkant PW 4 were the two police witnesses examined during the trial. The botanical garden would be a public place. The incident happened outside the botanical garden, on the road. Though Balubhai PW 3, at one stage, agreed that the botanical garden was a popular tourist place hastened to add that it was not so at the time of the incident. His deposition was recorded on 15.10.1992. The incident took place on 18.10.1990. We do not understand how such a dramatic change in popularity of a public place could happen barely in two years. He also agreed that botanical garden houses government staff and large number of workers would be present during the day. By all accounts, thus, the botanical garden was a popular place for visitors and would also have the presence of workers and government staff looking after the property. The incident which happened at about 4 O'clock in the afternoon was bound to arouse considerable public interest. No independent witness has been examined before the court, who could have been easily available.
12. With respect to the identity of accused No.2 also, there is considerable mystery. Both Page 9 of 11 R/CR.A/209/1993 JUDGMENT the witnesses Balubhai PW 3 and Vrajkant Jha PW 4 claimed that accused No.2 was known to one of the police man, who was the member of the raiding party. As soon as he started running away, this person shouted his name. In the FIR, the name of the accused No.2 is given without any reference to how his identity is established. FIR merely records that one person was arrested on the spot. Other person viz. Pravin ran away. In contrast, in the panchnama Exh 10, it is stated that of the two persons approaching, one of them ran away dropping the bag. Other one was caught who revealed his name as Lodai Munnat Harijan and this person, upon inquiry, stated that the other person who ran away was Pravin Gamit. It can thus be seen that there was inconsistent evidence on how the investigating agency came to know that the person who escaped was accused No.2. In the FIR, his name was mentioned without disclosing the source of information. In the panchnama, such source was attributed to the information supplied by apprehended accused No.1. In the deposition before the Court, the witnesses claimed that one of the constables, who was a member of the raiding party knew the accused and gave his name.
13. In addition to such factors, we cannot lose Page 10 of 11 R/CR.A/209/1993 JUDGMENT sight of the fact that police inspector Mr. Jha, who led the party, also carried out the entire investigation personally which practice has been disapproved by the Supreme Court in case of Rajesh Jagdamba Avasthi vs. State of Goa reported in AIR 2005 SC 1389.
14. Considering such multiple factors, we see no reason to interfere with judgement of acquittal rendered by the Trial Court. Resultantly, criminal appeal is dismissed. R & P to be transmitted to the Trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) Jyoti Page 11 of 11