Gujarat High Court
Mohamadali Suleman Varachhia And Ors. vs The State Of Gujarat And Ors. on 11 January, 1996
Equivalent citations: 1996CRILJ3125
JUDGMENT H.R. Shelat, J.
1. These two appeals are directed against the judgment and order dated 26th October 1988, passed by the then learned Additional Sessions Judge, at Surat, in Sessions Case No. 39 of 1988 on his file whereby the appellant in Criminal Appeal No. 961 of 1988 came to be convicted of the offence under Section 20(B)(2) of the Narcotic Drugs and Psychotrppic Substances Act, 1985 (hereinafter be referred to as 'NDPS Act'), Section 20(B)(1) of the NDPS Act, and Section 66(A) & (E) of the Bombay Prohibition Act; and sentenced to, 20 years' rigorous imprisonment and a fine of Rs. 2 lakhs, in default 4 years rigorous imprisonment more in respect of the offence under Section 20(B)(2) of the NDPS Act; rigorous imprisonment for one year and fine of Rs. 5,000/-, in default rigorous imprisonment for 3 months more in respect of the offence under Section 20(B)(l) of NDPS Act; while no separate sentence was passed in respect of the offence under Section 66A(A)&(E)of the Bombay Prohibition Act, and rest of the two accused who are respondents in Criminal Appeal No. 91 of 1989 came to be acquitted.
2. The facts leading the parties to prefer these two appeals may in brief be stated. Shri P.S. Patel, the then Divisional Police Officer at Surat received information that Mohmadali Suleman Varachhia and others were dealing in ganja, charas and opium etc., at their place at Kosamba. Hence he along with PSI Gohil, PSI Pathak, A.S.P. Keshavkumar and other mernbers of the staff went to Kosamba, called two panchas and then rafded the house of Moharnadali Suleman Varachhia bearing Panchayat No. 1/1.62/ 4 Mohamadali and Shaikh Ismail Shaikh Ibrahim were present in the house. After the house was raided, on minute search a bag below the mattress on the bedstead containing 51 round and rectangular shaped lumps of charas 7 Kg. & 400 grams in weight was found. Further the aluminium tin was found from where round lumps of charas weighing 1 Kg. 800 grams were found. From another tin 19 lumps of charas weighing 1 Kg 900 grams was found, while from tin box 950 grams hemp could be seen. The police could also get weighing-tools and Rs. 145/-. Both present in the house did not have (sic) any pass or permit to possess or to deal in the same. As the search proceeded further the police could realise that above two persons and Dipak Kishanlal were jointly dealing in narcotic substances against law and all the three had committed the offences punishable under NDPS Act and Bombay Prohibition Act as well. The complaint was then filed by the Divisional Police Officer, Surat and investigation was then carried out. At the conclusion of the investigation, the chargesheet against all the three was filed before the Court of the learned Chief Judicial Magistrate at Surat. As the learned Chief Judicial Magistrate. Surat, was not competent to hear and decide the case. he committed the case to the Court of Sessions which came to be numbered as Sessions Case No. 39 of 1988. The then learned Sessions Judge at Surat assigned the case to the then learned Additional Sessions Judge for hearing and disposal in accordance with law. A charge against all the three accused was framed at Exh. 6. All the three accused then pleaded not guilty. The prosecution then led necessary evidence against the accused. At the conclusion of the trial, the learned Judge below found that Mohmadali Suleman had committed the offences. He therefore held him guilty and convicted and sentenced him as aforesaid. However he found that Ismail Ibrahim Shaikh and Dipakkumar Keshavlal, the original accused Nos. 2 and 3 were not guilty as the prosecution had failed to establish the charge against them. With the result, the learned Judge below acquitted both these accused. Being aggrieved by the judgment and order of conviction. Mohamadali Suleman has preferred Criminal Appeal No. 961 of 1988; while the State has preferred Criminal Appeal No. 91 of 1989 being aggrieved by the order acquitting accused Nos. 2 & 3 namely Shaikh Ismail and Dipakkumar.
3. As both the appeals arise out of the same judgment and order and common questions of law and facts arise in both the appeals, with a view to avoid waste of time, hardship to the parties, and conflicting judgments, we decided to hear both the appeals together and dispose them of by a common judgment. Accordingly, both the appeals are heard and by this common judgment, both shall stand disposed of.
4. Mr. Saiyed, the learned Advocate for Mohmad Suleman submits assailing the conviction and sentence passed by the lower Court that here is a case where the learned Judge below did not consider the materials uprooting the prosecution's case. According to him, the information received by the police officer is required to be reduced to writing, but as that was not done, the trial had vitiated and the accused is entitled to acquittal. Another point which he has pressed much is about the delay caused in sending the Muddamal to the Chemical Analyser for analysis. According to him, there was a delay of 50 days which is certainly fatal to the prosecution case as the possibility of mischief having been played cannot be ruled out.The last one which he emphasizes much is about the facsimile of the seal discrediting the truth of the case of prosecution.
5. Mr. Budhbhatti, the learned Advocate representing the respondents in Criminal Appeal No. 91 of 1989 supported Mr. Saiyed. Mr. S.R. Divetia, the learned Addl. Public Prosecutor submitted that in this case in bulk charas and ganja's lumps are found which was nefarious. He then taking us to the entire evidence submitted that the learned Judge was perfectly right in convicting Mohmadali Suleman but was not right in acquitting the rest of the two accused. He then pointing out how the learned Judge committed the errors in acquitting rest of the two accused, has urged us to dismiss the Criminal Appeal No. 961 of 1988 and allow another Criminal Appeal No. 91 of 1989. Submitting further that the underground activities and dealings of international network and crimes syndicate with regard to narcotic drugs and psychotropic substances are going berserk. Drug peddlings through different agencies and persons in India operated entrepreneunial style are alarmingly increasing, as a result public health, especially health of the youth has been endangered, as drug addiction makes them the dead-wood. Consequently not only public health is jeopardized but gradually national freedom security, entity and integrity are at stake. The wise having clairvoyance could judge ill-will of international network planning organised crimes. They were scared, flushed and dismayed. With the result, victim oriented N.D. & P.S. Act came to be passed, providing very heavy sentences so as to fend of the evil widely spreading and curb the same permanently. The object of the Act is to save people and the Nation, and promote social welfare and national interest. The approach of the Court is expected to be promoting the object rather than finding fault with the prosecution by cavilling. The Courts are expected to heavily come down upon the criminals.
6. We are in full agreement with Mr. Divetia, the learned A.P.P. The role of the Courts is to promote the object of the Act and well-being and safety of the Nation and people as'well. The interpretation of law and adjudication of the dispute between the parties should always be meaningful. The wrong-doers should be adequately punished on charge being proved. It may however be stated that the Courts have to adjudicate in accordance with law and pronouncements of the higher Courts. They cannot under any logic or guise or obsessed with a particular notion transgress their limits. The Courts also cannot give a meaning foreign to the words appearing in different provisions. It owing to a particular provisions of law or the meaning of the words in the section, the prosecution thinks the accused will have undue advantage i.e. they will go unpunished despite their having committed the wrong which would be injurious to the Nation and the society, the appeal may be made to the law framing Body.
7. It may be stated that on other different points submissions were made but we would riot like to dwell upon those submissions as both the appeals can be disposed of on the three main points going to the root of the case. The Supreme Court has made it clear in the case of State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702) that as per Section 42(1) of the NDPS Act if the police officer is having a prior information about the commission of the offence under the NDPS Act, it is incumbent upon him to take down in writing, but if he does not take down in writing, that affects the trial adversely because the mandatory provision in that case can be said to have been set at naught injuring the right of the accused. In this case, Prabhudas Shamlal Patel, the Dy. S. P. has been examined at Exh. 12. According to him, the DSP had received the information regarding the offence who thereafter informed him about the same. He does not know whether the DSP reduced the same to writing. He does not have any evidence or proof to show that the information was reduced to writing. On careful scrutiny, we found nowhere going to show that the information received by the DSP was put down in writing. Mr. S. R. Divetia, the learned A.P.P. though laboured much could not point out from the evidence on record that the information received was written down. The DSP is also not examined on the point though he was available. If the witness knowing the fact is not examined for no good reason, the Court is entitled to infer everything against the party withholding ihe evidence of that witness. By omitting to writ down the information, a breach of the mandatory provision is committed and therefore the conviction cannot be sustained.
8. This Court has, in Criminal Appeal No. 50 of 1988, between John Paul Christian v. The State of Gujarat, taken a view, considering the provisions of NDPS Act, that if there is unexplained delay in sending the muddarmal for analysis to the Chemical Analyser, it being fatal to the prosecution, the accused cannot be convicted. Similar view has been taken by this Court in Criminal Appeal No. 20/88 and in the case of Chandrakant Nagindas Modi v. State, Criminal Appeal No. 812/87. In another case of Devjibhai Jivrajbhai v. State of Gujarat, 1993 (1) GLH (U.J.) 23 likewise view is taken. In this case, the raid was carried out on 8th November 1987. The muddamal seized on that day was sent to the chemical analyser on 29th December 1987. This shows that about 50 days on the seizure, the muddamal was sent. Of course Mr. Divetia pointing out the evidence of Mr. Vala recorded at Exh. 53 submitted that the delay was caused because the inveestigation was going on and the house of Dipakkumar the third accused was to be searched. From the evidence of Mr. Vala, it appears to us that the house of Dipakkumar was searched on 11 th November 1987. If that is the case, three days can be excluded; but in that case also there is a delay of 47 days, and that is, in our view, inordinate. As far as possible, the police must send it promptly so that the muddamal may not be tampered with, and/or may remain fit for analysis. If at all there is a delay, the prosecution has to convincingly explain it. It is pertinent to note that in the case on hand, no explanatory evidence has been adduced in this case. When that is so, the delay of 47 days in sending the muddamal to the Chemical Analyser is certainly fatal to the prosecution and on that count the conviction and sentence cannot be maintained.
9. We also find force in the last submission of Mr. Saiyed, the learned Advocate representing Mohmadali Suleman with regard to the facsimile of the seal. In order to ensure the Court that the muddamal seized from the accused was sent to the chemical analyser and the same was analysed, the prosecution has to adduce necessary evidence, leaving no room to doubt about its identity. In this case, the prosecution has no doubt led the evidence, but about identity of the muddamal it has dissembled. In the FIR (Ex. 14) it is not stated whether the muddamal seized at the time of raid was sealed. In the Panchnama (Ex. 14) no doubt about the sealing of the muddamal seized is mentioned but phraseology of the seal is not stated. The panchas also do not state about the same. Mr. P. S. Patel, the Dy. S.P. (Exh. 12) has no doubt mentioned about sealing of the muddamal stating that the muddamal articles were sealed by the seal of Kosamba police station but it is not made clear in which words the same was counched. The chemical analyzer while in his forwarding letter to the PSI-Kosamba (Ex.54) dt. 18-1-88 has mentioned that when the muddamal articles were received, they were sealed as "PSI, Kosamba, District-Surat (Rural)". The phraseology of the seal thus appears dissimilar. It may be stated that the officer of the police station is provided with his official seal over and above the common seal of the police station. The dissimilaling aspect goes to show that initially the common seal of the police station was used, but when the muddamal box reached the chemical analyser, he found thereon the personal but ofcourse official seal. It is not explained how the seal came to be changed after the seizure but before the muddamal was despatched for analysis.The forwarding letter addressed to the chemical analyser with facsimile impressions thereon is also not produced. In view of such evidence what can be deduced is that the possibility of tampering with the muddamal when it remained in police custody cannot be ruled out; and so there is a reason to agree with the submission advanced on behalf of the accused-appellant that the muddamal was sent to the chemical analyser other than what is alleged to have been seized. The identity of the muddamal is not established beyond doubt. The report of the chemical analyser therefore cannot be looked into and relied Upon. It has to be ignored. If that is done, there is no other evidence on record to hold positively that the goods or things seized from the house of the acused were charas and ganja, the prohibited articles. The bare statement of the police officer is not sufficient because it is not established whether those officers were trained to test, identify and make out the thing or object seized was charas and ganja and none else. On this count, the accused are entitled to the benefit of doubt.
10. Above discussed three points seriously damage the case of the prosecution, and so the conviction and sentence cannot be maintained. The learned Judge below has committed error by ignoring above stated three points going to the root of the case, and it seems he was swayed away by redundant and banal points with the result he lost the tee. In view of the matter, Criminal Appeal No. 961/88 will have to be allowed and conviction and sentence inflicted will have to be quashed, while the other appeal will have to be dismissed.
11. Before we pass the final order, we cannot miss to mention that the respondents in Criminal Appeal No. 91 of 1989 were though served, not present. Mr. M. J. Budhbhatti, the learned Advocate who was present in the Court promptly showed his willingness to assist them and this Court. He then promptly studied the papers and has to his credit assisted us, ably.
12. In the result, Criminal Appeal No. 91 of 1989 is hereby dismissed; while Criminal Appeal No. 961 of 1988 is hereby allowed, and the judgment and order convicting and sentencing Mohmadali Suleman Varachhia of the offences under Section 20(B)(2) and Section 20(B)(1) of the NDPS Act and Section 66A(A) & (E) of the Bombay Prohibition Act, are hereby quashed and set aside and he is acquitted thereof. We are told that Mohmadali Suleman Varachhia is in jail. He be set at liberty forthwith if no longer required in any other matter. Fine if paid be refunded. The bail bonds of Dipakkumar Keshavlal and Shaikh Ismail Shaikh Ibrahim are ordered to be cancelled.
13. The muddamal be disposed of as per the order of the lower Court.