Gujarat High Court
Madhumalik @ Mahadev Malik @ Madhugiri ... vs State Of ... on 13 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1287/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1287 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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MADHUMALIK @ MAHADEV MALIK @ MADHUGIRI KASHMIRI BAVAJI S/O
R....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1
MR. HARDIK SONI, APP,for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 13/01/2015
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellant-original accused No.1, under Section 374 of the Cr. P.C., against the Judgment and order dated 08.08.2011 rendered by the learned Special Judge and 2nd Additional Sessions Judge, Page 1 of 9 R/CR.A/1287/2011 JUDGMENT Jamnagar, in Special NDPS Case No.03 of 2009, whereby the appellantaccused was convicted for the offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substance 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 2 years.
[2] According to the prosecution case, on 04.01.2009, at about 11:25 p.m., information received by the Police Agency that one person was carrying 950 grams Charas. Accordingly, a raid was conducted near by Suryamukhi Hanuman Temple at Hapa Market by the members raiding party. On being search by the members of raiding party, 950 garms Charas was found from the possession of the appellantaccused. So, panchnama was drawn and mandatory provisions of the NDPS Act are followed and complaint was filed by the complainant before the Jamnagar A Division Police Station bearing C.R.No.II01 of 2009. Thereafter, the investigation was carried out and statements of the witnesses were recorded. Muddamal was sent to the FSL for analysis report and after receiving the report from FSL by the Investigating Officer, charge sheet was filed before the learned Judicial Magistrate First Class, Jamnagar, which was numbered as Criminal Case No.1072 of 2009. As the said case was exclusively triable by the Court of Sessions, learned Judicial Magistrate First Class, Jamnagar committed the case to learned Special Judge and 2nd Additional Sessions Judge, Jamnagar, which was thereafter, numbered as Special NDPS Case No.03 of 2009. Thereafter, appellantaccused prayed for before the learned trial Judge to provide legal assistant as his financial was Page 2 of 9 R/CR.A/1287/2011 JUDGMENT not sound, so advocate was provided to him.
[3] On the basis of above allegations, charge was framed against the appellantaccused vide Exh.9 and readover and explained to the appellantaccused for the offences punishable under Sections 22(b) of the NDPS. Then plea was recorded vide Exh.10, wherein, appellateaccused 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 Dharmendrabhai Anantray
2 15 Yogeshbhai Vasantbhai Ganatra
3 21 Asgar Jakubhai
4 23 Mehboobhai Osmanbhai
5 26 Rambhai Vashrambhai Sagar
6 29 Kanaiyalal Jamnadas
7 32 Nalinkant Narsibhai Vyas
8 36 Kalekhan Alamkhan
9 46 Nalinbharthi Bhimbharthi
10 51 Jaysukhbhai Jerambhai
11 55 Dharamshibhai Gokalbhai
12 57 Ravishankar Karunashankar
[5] In support of the prosecution case, the prosecution has
Page 3 of 9
R/CR.A/1287/2011 JUDGMENT
produced several documentary evidences like panchnama of raid at Exh.13, resolution under Section50 of NDPS at Exh.16, Resolution under Section 42(1) of NDPS at Exh.17, seizure memo at Exh.18, yadi of arrest of appellant at Exh.19, panchnama of muddamal by PSO at Exyh.24, certificate at Exh.30, yadi to FSL at Exh.33, report of the mobile van at Exh.34, copy of register at Exh.39, copy of Batmi at Exh.40, information regarding the seizure of muddamal at Exh.41, report under Section58 of NDPS at Exh.42, yadi of muddamal at Exh.43, form of Amarnath sign board at Exh.44, entry of station diary at Exh.47, report for registration of the offence at Exh.48, copy of muddamal register at Exh.49, copy of station diary regarding muddamal at Exh.50, copy of muddamal register at Exh.52, receipt of the FSL at Exh.56, entry of receiving muddamal from FSL at Exh.58, yadi to FSL at Exh.59, ravangi note at Exh.60, certificate of authority at Exh.61, forwarding letter of FSL at Exh.62, analysis reports of FSL at Exh.63 and 64 and information to brother of the appellant at Exh.65.
[6] Thereafter, after filing closing pursis by the prosecution at Exh.70, further statement of appellantaccused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it was admitted by the appellantaccused that he was innocent and he has not committed any offence and was wrongly chargesheeted. The appellantaccused has denied the case of the prosecution and submitted that a false case is filed against him.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge and 2nd Additional Sessions Judge, Jamnagar vide impugned judgment Page 4 of 9 R/CR.A/1287/2011 JUDGMENT and order dated 08.08.2011 held the appellant-accused guilty to the charges levelled against him under Section 22(b) of the NDPS Act, and convicted and sentenced the appellant accused, as stated above.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge and 2nd Additional Sessions Judge, Jamnagar, the present appellant has preferred this appeal through legal aid.
[9] Heard Mr. Pratik Barot, learned advocate for the appellantaccused and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondentState.
[10] Mr. Pratik Barot, learned advocate for the appellant accused read the oral evidence of PW1 Dharmendrabhai Anantray and PW2Yogeshbhai Vasantbhai Ganatra, who have been examined at Exh.12 and 15 respectively and vehemently argued that prosecution could not establish that prosecution has followed mandatory provision of NDPS Act. He further contended that information received by the raiding party, was not reduced to in writing immediately and was not supplied to higher authority. He further contended that as far as the provision of NDPS is concerned, if the mandatory provision is not followed regarding the information, then person cannot be convicted for the said alleged offence. He further contended that prior to search made by the leader of the raiding party, the appellantaccused was not informed about the same. He then contended that the members of raiding parties made search in Gujarati language, but as stated by the Page 5 of 9 R/CR.A/1287/2011 JUDGMENT appellantaccused in further statement recorded under Section313 of the Code of Criminal Procedure, he was not knowing Gujarati or Hindi language, even though learned trial Judge has not considered the said issue and wrongly convicted the present appellantaccused. Mr. Barot, further read the evidence of panch witnesses and police witnesses and argued that defence made sufficient attempt to establish that the prosecution has not followed proper Provision of law and procedure of sealing and seizing. He then contended that when the actual possession is not proved beyond reasonable doubt, learned trial Judge has committed a grave error in convicting the present appellantaccused. Hence, he prayed to allow the appeal.
[11] Mr.Hardik Soni, learned APP, on the other hand, vehemently argued that present appellantaccused was from the State of Assam and muddamal of 950 gram Charas was found from the possession of the appellantaccused and he introduced himself as SadhuSant. He read the contents of pachnama and panch witnesses and vehemently argued that first of all, it is required to be considered that as to whether prosecution has followed mandatory provisions or not? For the purpose, he read the contents of Exh.16 and 17 and argued that the prosecution has followed mandatory provisions of Sections50 and 42(1) of the NDPS Act. He further read evidence at Exh.13panchnama of raid and argued that as per the recovery made from the possession of appellant accused, it is primafacie established that contents of panchnama is supported by oral evidence of the panch witnesses. He then read the evidence at Exh.19yadi of arrest of accused and argued that even members of raiding party informed to higher officer regarding Page 6 of 9 R/CR.A/1287/2011 JUDGMENT the arrest of accused. He submitted that after sealing and seizing of the muddamal, the same was handed over to PSO and was kept in safe custody, which is supported by the contents of documentary evidence at Exh.24 and Exh.30. He next contended that as per the contents of Exh.42, the prosecution has followed mandatory provision under Section58 of NDPS Act. He further argued that it was the defence of the appellantaccused before the leaned trial Judge that he did not know Gujarati language eventhough the procedure was followed by the Investigating Agency in Gujarat language. In reply to the same, he read the evidence of Dy.S.P. Kalekhan Alekhan, who has been examined at Exh.36 and contended that during the search, the appellantaccused was talking in Hindi language and therefore, the procedure was disclosed before him in Hindi language. He further read the cross examination of Investigating OfficerRavishankar Karunashankar, wherein, he was stated that the present appellantaccused was knowing Hindi language and diary and other documents written in Hindi language were recovered from him. Mr. Soni, therefore, contended that submission made by learned advocate, Mr.Barot that the procedure was not disclosed in a proper language to appellantaccused, has no substance. Mr. Soni, then argued that looking to the report of FSL, it is primafacie established that contraband article Charas is recovered from the possession of the appellantaccused, but in further statement under Section313 of Cr.P.C., the appellantaccused did not properly explain to the learned trial Judge. He then read the Provision of Section54 of the NDPS Act and argued that when huge quantity of Charas found from the possession of the appellantaccused, presumption is Page 7 of 9 R/CR.A/1287/2011 JUDGMENT required to be drawn against the present appellant. Lastly, he argued that the learned trial Judge has not committed any error in convicting the appellantaccused and therefore, he prayed to dismiss the appeal.
[12] I have perused the documentary as well as oral evidence produced on record. First of all, as far as the submission made by Mr.Barot, learned advocate for the appellantaccused regarding the mandatory provision is concerned, the information received by the members of raiding party was reduced to in writing and the said information was sent to the higher authority and therefore, it seems that the mandatory provision was properly followed. I have minutely perused the contents of panchnama and evidence of the panchas and members of raiding party. Prior to search, contents of the information was disclosed to him and his right regarding search under the NDPS Act was also disclosed to him and therefore, it cannot be said that the mandatory provision was not followed. Further, primafacie it appears from the evidence of witnesses that muddamal was recovered from the possession of the appellant accused in presence of both the panchas, which is supported by the evidence of panchas. It further established that the said muddamal was seized and sealed by the present Investigating Officer and therefore, learned trial rightly considered that the prosecution has proved its case beyond reasonable doubt and prosecution has followed mandatory provision of law. As per the argument made by learned advocate Mr.Barot that the appellantaccused did not know Gujarati and Hindi languages, but as per the evidence of Investigation Officer, muddamal diary and other documents written Page 8 of 9 R/CR.A/1287/2011 JUDGMENT in Hindi language were recovered from the possession of the appellantaccused, which shows that the present appellantaccused was knowing Hindi language and it was the ground before the learned trial Judge to protect his skin to come out from the alleged offence made against him. In view of the above observations, learned trial Judge has rightly convicted the present appellant accused. In the result, I am in full agreement with the judgment and order of conviction of the learned Trial Court. Learned advocate for the appellantaccused is failed to establish his defence version.
[13] In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 08.08.2011 rendered by the learned Special Judge and 2 nd Additional Sessions Judge, Jamnagar, in Special NDPS Case No.03 of 2009, 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 9 of 9