Gujarat High Court Case Information System
Print
CR.A/196/2003 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 196 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
AMRUDHAM
PAIKIR SWAMI SUBRAMANIYAM (A.P.S.MANI) - Appellant
Versus
STATE
OF GUJARAT ? Respondent.
=========================================================
Appearance
:
MR
JM BUDDHBHATTI for
Appellant.
MR UR BHATT, APP, for
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 25/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant challenges the judgment and order rendered by the learned
Special Judge, Jamnagar, on 19.12.2002, in Special Criminal Case
No.1/2002, convicting the appellant for the offences punishable under
Sections 20(B) & 22(B) of the Narcotic Drugs and Psychotropic
Substances Act,1985 [?SNDPS Act?? for short] and sentencing the
appellant to undergo R.I. for a period of ten years and to pay a fine
of Rs.1 Lac for the offence under Section 20(B) and also to undergo
R.I. for ten years and to pay a fine of Rs.1 Lac, in default, to
undergo R.I. for one year. Both the sentences are ordered to run
concurrently.
2. The
brief facts of the case are that the investigating agency arrested
the appellant-accused in connection with possession of contraband
ganja weighing 2.250 K.grams
on 27.12.2001. After search, the muddamal was seized by drawing a
panchnama in presence of panch-witnesses. The samples were also drawn
thereunder and sent to F.S.L. for analysis. The samples were
analysised and F.S.L. Report indicated that the material seized was
ganja. On the basis of
that report, charge
sheet was filed against the accused-appellant and the case was
numbered as Spl. Criminal Case No.1/2002 before the Special Judge,
Jamnagar.
2.1 After
considering the evidence led before it, the trial Court came to the
conclusion that the prosecution was successful in establishing the
charge levelled against the appellant and recorded conviction and
imposed sentence, as stated hereinabove.
3. We
have heard learned advocate Mr. Buddhbhatti for the appellant, and
learned A.P.P. Mr.U.R.Bhatt for the State. We have also perused the
record and proceedings.
4. The
learned advocate for the appellant submitted that apart from other
discrepancies, the case of the prosecution ought to have failed
before the trial Court only on account of defect in the sealing
procedure adopted by the investigating agency at the time of seizure
and sampling. He submitted that seizure and sampling would go to the
root of the entire case and, therefore, other defects would be in
addition to the major defect of sealing and sampling. The learned
advocate submitted that while sealing the contraband seized and
samples drawn therefrom, the investigating agency has not affixed the
slip/s signed by the panch-witnesses on the outer cover of the
packets, but, has placed the slip/s inside the seized muddamal packet
or the samples drawn therefrom. This would leave room for tampering
with the muddamal seized because, without any dispute, the seal
affixed is that of the Investigating Officer. He, therefore,
submitted that the trial Court ought to have given benefit to the
accused-appellant and acquitted him. He submitted that this Court has
taken similar view in a number of cases. He relied on the following
decisions;
(i)
Criminal Appeal No.323 of 1996 [Jitendra @ Sanjaykumar Suryakant
Desai vs. State of Gujarat] decided on 17.8.2001 [Coram: B.C.Patel &
A.L.Dave,JJ.]
(ii)
Criminal Appeal No.287 of 1999 [Ganpatram Punmaram Vishnoi v. State
of Gujarat] decided on 7.5.2002 [Kshitij R. Vyas & Ravi R.
Tripathi,JJ.]
(iii)
Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas v. State of
Gujarat, 2006(1) GLH 409, wherein the above unreported judgments have
been referred to and relied on.
(iv)
Sohanlal Kasiram Brahmin & Anr. v. State of Gujarat & Anr.
2007(1) GLH 131.
5. The
learned Additional Public Prosecutor has opposed this appeal.
6. We
have considered the rival side submissions.
7. On
perusal of the record, we find that the panchnama drawn at the time
of seizure and drawing of sample clearly indicates that the slips
signed by the panch-witnesses were placed into the packet containing
the contraband article, or the samples drawn therefrom. Thereafter
the packet was sealed, tied with a thread and wax-seal of the
Investigating Officer was affixed. This is reflected in the F.S.L.
Report as well. The FIR also indicates the same situation.
7.1 Learned
A.P.P. Mr.Bhatt does not dispute the above factual aspect regarding
slip being inside the cover and not affixed on the cover below the
wax-seal.
8. In
our opinion, the contention regarding laxity in following the
procedure relating to sealing of the seized contraband article has
some substance. It is clear from the panchnama (Exh.13), FIR (Exh.
27) and FSL report (Exh. 20), so also the deposition of the raiding
officer (Exh.18) that the correct procedure for sealing has not been
followed to rule out the possibility of tampering with the contraband
article seized or samples drawn therefrom. It is found that after
drawing the samples, at the time of sealing the samples as well as
the remainder of the contraband seized, the slips containing
signatures of the panch-witnesses and the police officer were placed
inside the packets and, therefore, the possibility of tampering with
the muddamal at the later stage and then again resealing the same by
the investigating agency, cannot be ruled out. The very purpose
behind carrying out the search, taking of sample and sealing in
presence of panch-witnesses is to ensure that there is no scope for
any mischief in the procedure required to be followed. At the time of
sealing, slips containing signatures of panch-witnesses as well as
the investigating officer are affixed on the articles seized and a
seal is applied over it, so that, in case of any attempt for
tampering with the article seized, the seal would be broken or the
slip would be torn, which would immediately reveal such an attempt.
If the slip is put inside as was done in the instant case, the
possibility of tampering cannot be ruled out. Under the
circumstances, the procedure followed for sealing in the instant case
cannot be said to be proper and free from any possibility of
tampering. The procedure, therefore, cannot be said to be beyond the
scope of any reasonable doubt and in that event, benefit must go to
the accused.
9. This
Court has taken similar view in (i) Criminal Appeal No. 323/1996,
(ii) Criminal Appeal No.287/1999, (iii) Navinkumar @ Shambhuprasad @
Bapji Chimanlal Vyas v. State of Gujarat, 2006(1) GLH 409, and (iv)
Sohanlal Kasiram Brahmin & Anr. vs. State of Gujarat, 2007(1) GLH
131.
10. Since
the defect in sealing procedure while sealing the contraband article
or drawing samples therefrom would go to the root of the prosecution
case and affect the investigation and the trial and since we have
found such a defect in the procedure, we do not propose to deal with
the other aspects of the appeal.
11. Being
conscious about the menace of narcotic drugs and psychotropic
substance in the society, we only quote what has been observed by
this Court in Criminal Appeal No.323/1996, as under:
?SIt
cannot be overlooked that society is facing the menace of drugs and
persons involved in such drugs need to be appropriately dealt with.
The society needs to be protected from persons indulging in such
activities. The Legislature has, for that purpose, enacted laws with
stringent arrangements. But for that purpose, the prescribed
procedure has to be strictly followed by the Investigating Agency.
Failure on the part of the Investigating Agency may result in
non-fulfilment of the purpose behind the enactments. The Apex Court,
in the case of State of Punjab v. Baldev Singh, 1993(3) GLR 2483, in
paragraph 31, observed as follows:
’31.
There is indeed a need to protect society from criminals. The
societal intent in safety will suffer if persons who commit crimes
are let off because the evidence against them is to be treated as if
it does not exist. The answer, therefore, is that the investigating
agency must follow the procedure as envisaged by the statute
scrupulously and the failure to do so must be viewed by the higher
authorities seriously inviting action against the officials
concerned, so that the laxity on the part of the investigating
authority is curbed.??
We
only hope that the authorities concerned will take appropriate action
to avoid such eventualities, as in the instant case.??
12. The
appeal, therefore, would stand allowed. The judgment and order dated
19th December, 2002, rendered by the learned Special
Judge, Jamnagar, in Spl. Criminal Case No.1/2002 recording conviction
of the appellant for the offences punishable under Sections
20(B)(II)(B) & 22(B) of the NDPS Act is hereby set aside. The
appellant is directed to be released from the prison forthwith, if
not required in any other case. The fine, if paid, shall be refunded.
[
A.L. Dave,J.]
[
J.C.Upadhyaya,J.]
(patel)
Top