Ghaverchand Khetatam Darji vs State Of ... on 20 July, 2015

[Cites 15, Cited by 0]

Gujarat High Court

Ghaverchand Khetatam Darji vs State Of ... on 20 July, 2015

Bench: S.G.Shah

        R/CR.A/243/2010                                     CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       CRIMINAL APPEAL (AGAINST CONVICTION) NO. 243 of 2010
                                        With
                          CRIMINAL APPEAL NO. 991 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE S.G.SHAH
==========================================================

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 ?

========================================================== GHAVERCHAND KHETATAM DARJI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ========================================================== Appearance:

MS SADHANA SAGAR, ADVOCATE for the Appellant(s) No. 1 MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 20/07/2015 CAV COMMON JUDGMENT Both these appeals are arising out of the common impugned judgment and order dated Page 1 of 27 R/CR.A/243/2010 CAV JUDGMENT 15/12/2009 rendered by the Addl. Sessions Judge & Presiding Officer of 4th F.T.C at Palanpur in Special [NDPS] Case No. 112/2006 so far as appellant in Criminal Appeal No. 991/2010 and Case No. 166/2007 so far as appellant in Criminal Appeal No. 243/2010 are concerned. Since both the cases are arising out of the same FIR being Palanpur City Police Station II C.R. No. 294/2006 dated 3/6/2006 under sections 15 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 [for short 'the Act'] and since they are convicted by judgments impugned in the appeals by the trial Court, the appellants are heard together and decided by impugned judgment. By impugned judgments, both the appellants have been awarded sentence of 10 years rigorous imprisonment [RI] and fine of Rs.1 lac each and two years' additional RI if fine is not paid. As usual, the period of custody during trial was ordered to be given set off. As per the jail record, appellant - Ghaverchand Khetaram Darji of Criminal Appeal No. 243/2010 has undergone almost 8 years of imprisonment and he is also convicted for 3 years in another Case No. 620/2007 but under sections 392 and 114 of the IPC. Whereas appellant - Mularam Punaram Prajapati - of Criminal Appeal No. 991/2010 has undergone almost 9 years of imprisonment.

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2 I have heard Ms. Sadhna Sagar, Ld. Advocate for the appellants and Mr. KL Pandya, Ld. APP for the respondent - State and perused the record and proceedings.

3 The case of the prosecution is to the effect that on 3/6/2006 when the complainant has tried to check the vehicle of the appellants on Danta - Ambaji road, instead of stopping the vehicle, accused have tried to run away with the vehicle and ultimately they left the vehicle near Chamda Mill Crossing and tried to run away.

However, at that time, appellant - Mularam Punaram Prajapati was caught by the police, whereas appellant Ghaverchand Khetaram Darji has run away from the place. On inspecting the vehicle, the complainant has found that real registration number of the vehicle was RJ-04-TA- 0081 and it has been replaced with the another number plate showing registration number of the vehicle as GJ-18-AA-7101 and there was 284.500 Kgs posh doda of opium without any permission or licence to hold and carry such narcotic substance. Therefore, FIR was lodged and after investigation, charge-sheet was filed which resulted into conviction of the appellants as aforesaid.

4 It is a futile attempt and exercise by Page 3 of 27 R/CR.A/243/2010 CAV JUDGMENT the appellants in submitting that the charge is disclosing only one name and, therefore, when charge is not properly framed against both the appellants, trial and conviction thereupon is unwarranted, for the simple reason that it is admitted fact that at the place of incident, one of the appellants, namely Mularam Prajapati was caught with the vehicle; whereas other accused was able to run away from the place of incident and, therefore, though FIR is common against both of them, in absence of Ghaverchand Khetaram Darji, who was shown as absconder, initially charge-sheet was filed only against Mularam Prajapati and, therefore, in Special Case No. 112/2006 when charge was framed on 20/11/2006 certainly it is only against one accused. Whereas as and when Ghaverchand Khetaram Darji was arrested, Special Case No. 166/2007 was initiated against him wherein charge was framed as late as on 18/6/2008. However, on scrutiny of both these charges, it becomes clear that since only one accused was available for framing charge on both different dates though charge was framed individually on different dates, there is specific reference of another accused in such charge and, therefore, there is no substance in the submission by the appellant that the charge is improper.

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5 Then remains to verify and scrutinize that whether there is any substance in the other submissions of the appellants by which they want to confirm an acquittal. Though impugned judgment is common, evidence is separately recorded in both the cases, it would be appropriate to consider the case of both the appellants separately.

Criminal Appeal No. 243/2010 :

6 PW No. 1 at exh. 13 - Gulamahmed

Gulamhaider Shaikh is the Scientific Officer of Investigation Van in Palanpur, wherein he has admitted that there is no disclosure of name of the driver of the vehicle and preliminary report of local inspection, which is proved at exh. 15. Such report was prepared and forwarded by the witness. He also admits that in exh. 14 the vehicle number is recorded as GJ-18-AA-7107 and not as RJ-04-TA-0081 and that even witness has not disclosed such fact.

7 PW No. 2 at exh. 16, namely Munirkhan

Ayubkhan Pathan is Panch witness of raid and seizure Panchnama of the contraband material seized from the vehicle in question, so also PW No. 3 - Nayanbhai Kantilal Soni at exh. 19. Both these witnesses have categorically denied the case of prosecution contending that they have Page 5 of 27 R/CR.A/243/2010 CAV JUDGMENT simply signed a blank paper as asked by the police and otherwise they do not know anything and nothing has happened or done in their presence and that they have never seen vehicle and that nothing has been seized from any vehicle in their presence.

8 Similar is the position with PW No. 4 at exh. 22 being Satishkumar Parshuram, who denied to have weighed the contraband material recovered from the vehicle in question. All the above three witnesses have also specifically denied that police has recorded their statements or that they have signed pursuant to investigation and recovery as disclosed in such Panchnama. Thereby all three independent witnesses are not supporting case of the prosecution.

9 Whereas PW No. 5 at exh. 24 Gautam Manilal Parmar was Assistant Superintendent of Police at the relevant time. It is his say that on 3/6/2006 when he was returning to his police station at Danta after completing his work from Palanpur Police Station, near Mahobatgadh, he noticed one Bolero jeep parked on the wrong side of the road with two persons standing nearby and, therefore, he had taken turned his vehicle after going further to some extent and gave signal to stop such vehicle but at that time two people Page 6 of 27 R/CR.A/243/2010 CAV JUDGMENT with such Bolero jeep had managed to run away from the place and, therefore, he has conveyed the message at Palanpur control room to block all the roads so as to catch such Bolero jeep and thereby near Mervada three roads when Police Inspector Mr. VB Patel of LCB Branch and his staff had noticed such Bolero jeep, they tried to stop it, but the jeep driver instead of stopping, broke off the cordon and ran away. However, near Ratanpur Patiya also since there was blockage by Dy. S.P. Chhapiya, jeep had taken turn on dairy road, but when police party was chasing the jeep and when there was blockage on almost all roads, though Bolero has taken turn to Jagana - Kanodar

- Chhapi - Changa and when jeep was going towards Chamda Mill Railway Crossing, the railway crossing was found closed and, therefore, driver of the Bolero has to stop the vehicle and when its occupants were trying to run away, police staff has chased them, wherein driver could not be caught but his cleaner was caught by the police and thereafter, police has taken him near the jeep. On catching the jeep and one person, who was ultimately identified as Mularam Punaram Prajapati, the police has inspected the Bolero and found opium in it and, therefore, jeep and its occupant were taken to Palanpur City Police Station with intimation to the Scientific Officer to remain present at the police station to Page 7 of 27 R/CR.A/243/2010 CAV JUDGMENT examine and identify the material seized by them.

It is further contended that thereafter Dy. S.P. Mr. Chhapiya had inquired and interrogated such Mularam Punaram Prajapati. Rest of the story is details of the investigation and inquiry as required under the law. However, there is no controversy or defense regarding such investigation except identification and presence of Muddamal article, discussion of all those minute details is avoided.

10 The complainant has been cross-examined at length, but the accused could not rebut his evidence or get proof of innocence.

11 As against such evidence by the prosecution, wherein except complainant, other witnesses have turned hostile and complainant being police officer has himself recorded the complaint and investigated the case and, therefore, he supports the version of the complaint and accused could not get any admission or confirmation in their favour.

12 In addition to above discussed oral evidence, the prosecution has produced five documentary evidence, amongst which exh. 15 is opinion of the Scientific Officer, exh. 17 is the Panchnama of Muddamal and exh. 54 is complaint, Page 8 of 27 R/CR.A/243/2010 CAV JUDGMENT which are material documents; whereas rest of the documents are communication, receipts and slips only.

13 It so happened that practically after recording full evidence in Special Case No. 112/2006 against Mularam Prajapati, in absence of present appellant Ghevarchand, present appellant Ghevarchand was arrested, charge-sheeted and tried only, relevant additional evidence against such appellant was recorded.

14 So far as defense of the present appellant is concerned, it is a total denial of his involvement at all contending that since his name is cropped up on record during investigation only from the statement of the co-accused and since statement of such co-accused cannot be taken into consideration as an evidence against him his conviction is not proper.

15 There is no substance in such submission inasmuch as factually also it is not correct to say that name of the present appellant has cropped up in the evidence only because of the statement of co-accused inasmuch as in fact owner of the vehicle, namely Virdhabhai Purkharam, whose evidence is discussed hereinafter with reference to second appellant wherein he was Page 9 of 27 R/CR.A/243/2010 CAV JUDGMENT cross-examined on behalf of the present appellant, makes it clear that in fact owner of the vehicle has disclosed name of the present appellant as his driver with categorical statement that on the date of incident, present appellant Ghevarchand Khetaram was driver on his vehicle. Not only that but it was categorical statement by the owner of the vehicle that Ghevarchand was taking the vehicle on his own and submitting accounts only after 3/4 days and that at the time of the incident, the appellant Ghevarchand has gone with the vehicle on 1/6/2006 stating that he is going on Wordhy and when he did not return back even after couple of days, the owner has went to Balotra stand from where his vehicle was plying on hire, but he could not find either the vehicle or appellant driver at that place and he came to know about the seizure of the vehicle after couple of days. He was cross examined at length on behalf of the present appellant wherein taxi passing, finance on vehicle and all other issues were tried to be revealed by defense lawyer, but so far as involvement of driver Ghaverchand is concerned, the appellant could not succeed in rebutting such evidence regarding his connection with the vehicle as a driver and on the contrary cross examination reconfirmed that the witness has categorically disclosed in his police statement Page 10 of 27 R/CR.A/243/2010 CAV JUDGMENT as well as in his deposition before the Court that the appellant was driver of his jeep at the relevant time. Therefore, when law permits to rely upon the evidence of police witnesses, if contraband material is proved to be recovered from particular place and when such Muddamal was recovered from the vehicle and that too after chasing the vehicle and when appellant succeeded in absconding even after leaving the vehicle in question, by which contraband material was being transported from one place to another place, the other evidence against the appellant is in the form of number plate of the vehicle. If at all appellants have no intention to commit any offence whatsoever, they have no reason for changing number plate and it is also an offence to change the number plate of the vehicle by displaying number plate of another State.

16 So far as statement of co-accused is concerned, though there are different decisions by different Courts on the subject, the fact remains that the Division Bench of this Court has in the case of Sulochnaben Shivram Kadam v. State of Gujarat reported in 2010 [0] GLHEL-HC 223391 [Criminal Appeal No. 1269 of 2008 decided on 10/5/2010], after relying upon several other decisions of the Hon'ble Supreme Court, the Division Bench has confirmed that the statement Page 11 of 27 R/CR.A/243/2010 CAV JUDGMENT of co-accused in such cases is admissible in evidence. Therefore, there is no substance in the appeal so as to acquit the appellant from all the charges.

17 However, before concluding present appeal, it would be necessary to deal with the second appeal filed by Mularam Punaram Prajapati.

Criminal Appeal No. 991/2010 :

18 PW No. 1 at exh. 7, namely Munirkhan

Ayubkhan Pathan is Panch witness of raid and seizure Panchnama of the contraband material seized from the vehicle in question, so also PW No. 2 - Nayanbhai Kantilal Soni at exh. 36. Both these witnesses have categorically denied the case of prosecution contending that they have simply signed a blank paper as asked by the police and otherwise they do not know anything and nothing has happened or done in their presence and that they have never seen vehicle and that nothing has been seized from any vehicle in their presence.

19 Whereas PW No. 3 at exh. 46 Gautam Manilal Parmar was Assistant Superintendent of Police at the relevant time. It is his say that on 3/6/2006 when he was returning to his police Page 12 of 27 R/CR.A/243/2010 CAV JUDGMENT station at Danta after completing his work from Palanpur Police Station, near Mahobatgadh, he noticed one Bolero jeep parked on the wrong side of the road with two persons standing nearby and, therefore, he had taken turned his vehicle after going further to some extent and gave signal to stop such vehicle but at that time two people with such Bolero jeep had managed to run away from the place and, therefore, he has conveyed the message at Palanpur control room to block all the roads so as to catch such Bolero jeep and thereby near Mervada three roads when Police Inspector Mr. VB Patel of LCB Branch and his staff had noticed such Bolero jeep, they tried to stop it, but the jeep driver instead of stopping, broke off the cordon and ran away. However, near Ratanpur Patiya also since there was blockage by Dy. S.P. Chhapiya, jeep had taken turn on dairy road, but when police party was chasing the jeep and when there was blockage on almost all roads, though Bolero has taken turn to Jagana - Kanodar

- Chhapi - Changa and when jeep was going towards Chamda Mill Railway Crossing, the railway crossing was found closed and, therefore, driver of the Bolero has to stop the vehicle and when its occupants were trying to run away, police staff has chased them, wherein driver could not be caught but his cleaner was caught by the police and thereafter, police has taken him near Page 13 of 27 R/CR.A/243/2010 CAV JUDGMENT the jeep. On catching the jeep and one person, who was ultimately identified as Mularam Punaram Prajapati, the police has inspected the Bolero and found opium in it and, therefore, jeep and its occupant were taken to Palanpur City Police Station with intimation to the Scientific Officer to remain present at the police station to examine and identify the material seized by them.

20 The complainant has been cross-examined at length, but the accused could not rebut his evidence or get proof of innocence.

21 PW No. 6 at exh. 86 - Gulamahmed

Gulamhaider Shaikh is the Scientific Officer of Investigation Van in Palanpur, wherein he has admitted that he had been to the police station and after examining the material recovered from the vehicle in question, he identified the material as Posh Doda of opium and expressed his Page 14 of 27 R/CR.A/243/2010 CAV JUDGMENT opinion as such. However, during cross examination, he has to admit that he is B. Sc. with Physics, whereas examination of substance falls within the biology and that he was aware during such checking that such seized material is Posh Doda of opium as disclosed by the police and, therefore, he admits that because of presence of opium alchoid as well as shape and color of opium, he opined that it is contraband Posh Doda of opium. However, he has not disclosed such reason for opium in his report and confirms that he could not give specific opinion because they do not have such facility. He admits that no scientific examination was carried out for such preliminary opinion and that the police has not recorded his statement. He proved his report at exh. 81.

22 Similar is the position with PW No. 7 at exh. 89 being Satishkumar Parshuram, who denied to have weighed the contraband material recovered from the vehicle in question. All the above three witnesses have also specifically denied that police has recorded their statements or that they have signed pursuant to investigation and recovery as disclosed in such Panchnama. Thereby all three independent witnesses are not supporting case of the prosecution.

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23 As against such evidence by the prosecution, wherein except complainant, other witnesses have turned hostile and complainant being police officer has himself recorded the complaint and investigated the case and, therefore, he supports the version of the complaint and accused could not get any admission or confirmation in their favour.

24 Other prosecution evidence in the form of P.W. Nos. 4, 5, 8 to 12 and 14 and 15 are all police officers on duty at the relevant time and, therefore, they have supported the prosecution story in nutshell and their cross examination could not prove anything in favour of the defense.

25 P.W. No. 7 at exh. 89 is Tolat, who has

helped the investigating agency to weigh the seized material and to prepare samples from such material. However, he turned hostile and refused to have done anything as per Panchnama or police investigation. Though he admits that police has got his signatures on some papers, he has specifically deposed that mark 3/14 does not bear his handwriting.

26 Whereas P.W. No. 13 is the owner of the

vehicle in question which was seized at the time Page 16 of 27 R/CR.A/243/2010 CAV JUDGMENT of the incident and from which contraband material was found. Such witness at exh. 105 is Virdharam Purkharam. It is his say that he owns Bolero Jeep No. RJ-04-TA-0081 and that the appellant Ghevarchand Khetaram Darji was driver of such jeep and he was plying it from Balotra taxi stand and was getting accounts on every 4/5 days. Before the incident, on 30/5/2006 he has submitted such accounts and again taken the jeep for Wordhy and on 1/6/2006 he - appellant Ghevarchand has conveyed on mobile phone of brother of the witness and talked with his wife that he got trip for three days and going for such trip. Thereafter, there was no news or message of the jeep, but on 5/6/2006, when he inquired at Balotra taxi stand, he came to know that his jeep was not available at such place for last 4/5 days and thereupon, he went back to his home, where he got the news that his jeep was caught in Gujarat and police came to his house searching the driver Ghevarchand, but he was not found there. Thereupon, he also tried to find out the driver but he could not find out. He produced registration book of jeep, which is proved at exh. 106. He was further examined in connected Special Case No. 112/2006 where he was cross examined by the advocate of the driver, but so far as present appellant Mularam is concerned, the witness is not cross examined at all.

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27 However, the defense put forward by the accused is to the effect that in fact accused was in the hospital for the treatment of his relative who was hospitalized on the date of incident. To prove such defense, the appellant has examined two witnesses at exhs. 120 and 122 and produced relevant case papers at exh. 121.

28 Defense Witness No. 1 at exh. 120 is Dr. Khumabhai Bhanabhai Suthar. He was serving as Medical Officer in Gandhi Lincoln Hospital of Bhansali Trust at Deesa. It is his case that he has brought indoor case paper register of the year 2006 from the hospital where he was on duty on 27/5/2006 and where such outdoor and indoor registers are being maintained. Referring such indoor register, he has deposed that on 27/5/2006 there was an indoor Case No. 43/2006 and Outdoor No. 9495/2006 for a patient, namely Rupaben of village Tarla, Taluka Chauhtan, District Badmer of Rajasthan. He has further deposed that such patient Rupaben was admitted in the hospital on 27/5/2006 and she was operated on 29/5/2006 and discharged from hospital on 6/6/2006. It is also confirmed that the patient was having burn injuries on leg, which resulted into stiffness on leg and, therefore, she was operated. Age of the patient stated by him is one year only and she Page 18 of 27 R/CR.A/243/2010 CAV JUDGMENT was treated by Dr. Sukesh Jamber, Orthopedic Surgeon. He brought relevant treatment docket which was proved on record at exh. 121. During cross-examination witness has admitted that he has not treated the patient. Though he admits that even indoor patient register is being maintained by the hospital, the defense has failed to produce extract of any such register, whereas only case papers, which are free documents, are produced on record.

29 Defense Witness No. 2 at exh. 122 is one Pannaram Valaram Prajapati. He admits that the appellant Molaram is his cousin brother since father of both of them are real brothers. He supports the story of treatment of her daughter Rupaben as narrated by D.W. No. 1. However, we are more concerned with the activities and presence of the appellant Mularam only, for which on the contrary witness has categorically stated in his examination in chief itself that on the date of the incident i.e. 3/6/2006 the appellant Mularam left the hospital for going to Ambaji. Though the reason for such trip was disclosed as a commitment to pay respect by Darshan of Ambaji once operation is successful, the fact remains that when defense wants to prove alibi of his presence and involvement in the treatment of his cousin's daughter, the witness, cousin of the Page 19 of 27 R/CR.A/243/2010 CAV JUDGMENT appellant, himself has admitted that on the date of the incident, appellant has moved for Ambaji from Deesa and thereafter, he did not return back and they came to know about the incident by reading newspaper on the next day. During cross examination, witness has admitted that four ladies of the family had accompanied the patient in the hospital. So far as activities of the appellant is concerned, the witness has, on the contrary, categorically stated that he does not know that the appellant is serving as a cleaner on Bolero jeep of one Virdharam Purkharam Choudhary or another appellant Ghevarchand Khetaram Darji was driver of such vehicle. He admits that there is facility of bus service to and fro between Deesa and Ambaji and that he has never disclosed all such facts to anybody before such deposition.

30 Therefore, so far as story of defense is concerned, they have miserably failed to prove alibi and statement of cousin brother that his daughter was hospitalized at Deesa and for the purpose the appellant was at Deesa would neither prove alibi nor confirm any evidence which can rebut the prosecution case in any manner whatsoever. On the contrary, the evidence by D.W. No. 2 proves that on the date of the incident i.e. 3/6/2006 the appellant left Deesa for going Page 20 of 27 R/CR.A/243/2010 CAV JUDGMENT to Ambaji and thereafter if the appellant was found with contraband material in the vehicle between Ambaji and Palanpur - Deesa, then in fact such evidence does not prove the defense to support and corroborate the story of alibi by the accused/appellant.

31 The final FSL report is at exh. 101. Perusal of such report makes it clear that the material from which sample was sent for inspection, shows the presence of narcotic chemical and therefore, the chemical analysis of material shows positive result of such narcotic chemical and hence after carrying out physical and botanical examination, the FSL has issued a report opining that the material is containing Popi straw, Afin, Morphin, Kodein, Thibain, Papavarin and narcotic and falls in the definition of Popi straw, which is contraband material under the NDPS Act.

32 Whereas at exh. 102 there is report by the Scientific Officer of the FSL Gandhinagar, which confirms that specimen contains botanical substances which include leaves of different colors and pieces of the plant. Whereas after primary inspection, it is described as pieces of Posh Doda of Papavar plant. Therefore, in any case, it was not final product for sale, but Page 21 of 27 R/CR.A/243/2010 CAV JUDGMENT practically it is row material from which contraband substance or narcotic drug is to be derived for its consumption as such or for any other purpose.

33 Whereas so far as involvement of the appellant is concerned, irrespective of hostile witnesses and defense witnesses, the fact remains that now in fact there is a positive evidence that on the date of the incident, appellant Mularam was on his way to Ambaji from Deesa and, therefore, now it would be difficult for him to submit that he was not present at all at the place of trapping the vehicle. An attempt was made by him to submit that he was nowhere connected with the vehicle in question, but he was bonafide passenger of the vehicle between Deesa and Ambaji. However, deposition of vehicle owner makes it clear that the vehicle was on three days trip and not for single trip between Deesa and Ambaji and that too it was from Balotra of Dungarpur district of Rajasthan and not between Deesa and Ambaji. The other evidence goes against the appellant is his conduct of trying to run away on noticing the police and even after stopping the vehicle. If at all he was innocent, he should have helped the police in catching the real culprit and driver of the vehicle namely Ghevarchand Khetaram, the co-accused. Therefore, Page 22 of 27 R/CR.A/243/2010 CAV JUDGMENT when law permits to rely upon the evidence of police witnesses, if contraband material is proved to be recovered from particular place and when such Muddamal was recovered from the vehicle and that too after chasing the vehicle and when driver of vehicle had tried to escape from the place and appellant could not succeed in absconding even after leaving the vehicle in question, by which contraband material was being transported from one place to another place. The other evidence against the appellant is in the form of number plate of the vehicle. If at all appellants have no intention to commit any offence whatsoever, they have no reason for changing number plate and it is also an offence to change the number plate of the vehicle by displaying number plate of another State. Therefore, there is no substance in the appeal so as to acquit the appellant from all the charges.

34 The appellants are relying upon the following citations :

I Ravindran @ John v. Superintendent of Customs reported in [2007] 6 SCC 410 II Koluttumottil Razak v. State of Kerala reported in [2000] 4 SCC 465 III Raju Premji v. Customs, NER, Shillong Unit reported in [2009] 16 SCC 496 Page 23 of 27 R/CR.A/243/2010 CAV JUDGMENT IV Union of India v. Bal Mukund reported in [2009] 12 SCC 161 V Noor Aga v. State of Punjab reported in [2008] 16 SCC 417 VI Abdul Rashid Ibrahim Mansuri v. State of Gujarat reported in [2000] 2 SCC 513 VII Mohinder Kumar v. State, Panaji, Goa reported in [1998] 8 SCC 655 VIII Directorate of Revenue v. Mohammed Nisar Holia reported in [2008] 2 SCC 370 IX Ashok Kumar Sharma v. State of Rajasthan reported in [2013] 2 SCC 67 X Shantilal v. State of M.P reported in [2007] 11 SCC 243 XI State of NCT of Delhi v. Ashif Khan alias Kalu reported in [2009] 4 SCC 42 XII Ziledar Singh v. State of M.P reported in 2011 Cri. L.J. 47.

35 However, none of the above citations is relevant at present because in the present case, the contraband material is recovered from the vehicle in open place on road and thereby neither from the house nor from the person and, therefore, provisions of sections 42 and 50 of the Act would not be applicable. It is also held in above citations that the illegality in search would not prove fatal to prosecution case, but it may be taken into consideration while Page 24 of 27 R/CR.A/243/2010 CAV JUDGMENT appreciating the evidence. It is also held in some cases that strict compliance of sections 41, 42 and 50 are not required. It is also held that confession would not be hit by section 25 of the Indian Evidence Act except to scrutinize that whether it was made voluntarily or not. Whereas in the present case, involvement of Ghevarchand is not only based upon confessional statement. So far as mens-rea is concerned, culpable mental state of the accused about possession of such article, the burden of proof rests upon the accused rather than prosecution. The recovery is not from the hotel and, therefore, cases where material recovered from the hotel and presumption under section 42 or 43 would not be material. So also, the presumption under section 50 is not material when recovery is not from the person. So far as the amount of fine is concerned, only because in one case it has been held that fine should be reasonable, there is no reason to interfere in such order since it is certainly within the power of the trial Court to realize that what amount is suitable to be imposed as fine, considering the over-all facts, circumstances and evidence as well as conduct and nature of the convict. So far as percentage of contraband material is concerned, necessary benefit is to be extended to the appellants.

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36 However, so far as the contraband material is concerned, considering the nature of the material and relying upon the decisions in the cases of relying upon Division Bench judgment of this Court rendered in the case of Pratapbhai Surjibhai Dodiyar Vs. State of Gujarat [2011 Cr.L.R. (Guj.) 585], as well as in the case of Mashribhai Kanabhai Chauhan Vs. State of Gujarat, in Criminal Appeal No.1025 of 2008 dated 03.04.2014, it was contended that in absence of purity test, punishment deserves to be scaled down from the one of commercial quantity to the quantity between small and commercial and hence it would be necessary to give benefit of consideration of quantity of material, to be treated as one step down, to confirm the conviction. Since the appellants had been convicted for 10 years and they have undergone imprisonment of about eight years and nine years respectively, it would be appropriate to reduce their conviction to the period already undergone in view of the aforesaid circumstances.

37 In view of the above facts and circumstances, the appeals are partly allowed. Thereby though order of conviction is confirmed, the order of sentence is modified to the effect that the period of conviction is restricted to the period already undergone. In view of such Page 26 of 27 R/CR.A/243/2010 CAV JUDGMENT facts, the appellant in Criminal Appeal No. 991/2010 be released from the jail, if he is not required for any other offence.

38 So far as appellant in Criminal Appeal No. 243/2010 is concerned, he is convicted for three years in another case being Criminal Case No. 620/2007 for the offence punishable under sections 392 and 114 of the IPC, hence jail authority shall transfer him for undergoing such sentence, wherein probably appeal is not filed by him.

Order of fine is not interfered with.

               R     &    P   be    sent       back        to   the    concerned
trial Court.


                                                                (S.G.SHAH, J.)
*   Pansala




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