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CR.A/1485/2009 7/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1485 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
IQBALBHAI
JIVABHAI SHAIKH & 1 - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
RAJESH M AGRAWAL for
Appellant(s) : 1 - 2.MR GIRISH D CHAVDA for Appellant(s) : 1 - 2.MR
YOGESH R AGRAWAL for Appellant(s) : 1 - 2.
MR M.R. MENGDEY APP for
Opponent(s) : 1,
RULE UNSERVED for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 28/04/2010
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
Learned
advocate Mr Agrawal seeks permission to delete respondent No.2 from
the cause title. Permission as prayed for is granted and name of
respondent No.2 shall stand deleted.
2. The
appellant challenges the judgment and order dated 21.7.2009 rendered
by Additional Sessions Judge, Ahmedabad (Rural) at Viramgam in
Special NDPS Case No.1 of 2007 convicting the appellants for offences
punishable under Section 20(B) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 [ NDPS Act for short] and
sentencing them to undergo RI for 20 years with a fine of Rs. 1 lakh,
in default, to further undergo RI for 2 years.
3. The
brief facts of the case are that the appellants were found to be in
possession of 1998 gms. of ganja while they were travelling on
motor-cycle No.GJ-1-FG-8447 at about 18-30 hours of 28.6.2007 on the
Viramgam-Surendranagar Highway, Nr. village Thori. An FIR in this
respect was launched by Police Sub-Inspector MN Vankar of Viramgam
Rural Police Station indicating that when they had gone for a
prohibition nakabandi to village Jakhwada, he noticed two persons
travelling on a motor-cycle coming from Ahmedabad side at an
excessive speed and, therefore, he suspected them. He, therefore,
chased the motor-cyclists and intercepted them near Narmada Colony
on the Viramgam-Surendranagar road and, on search, found the
contraband in their possession contained in a plastic bag put in a
cotton carry bag. Ultimately, offence was registered and charge-sheet
filed. Charge was framed at Exh.1, to which the accused persons
pleaded not guilty and claimed to be tried.
4. The
trial Court found that the prosecution was successful in establishing
charges levelled against the appellants and convicted them, as
stated hereinbefore.
5. Learned
advocate Mr Agrawal for the appellants submitted that apart from
other discrepancies that the prosecution case suffers from, it
suffers from a major 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 defects of sealing and sampling. It was submitted by learned
advocate Mr Agrawal that while sealing the contraband seized and
samples drawn therefrom, the investigating agency has not affixed the
slips signed by the Panch-witnesses on the outer cover of the
packets, but has placed the slips inside the seized muddamal packet
and 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 himself. It was,
therefore, submitted that the trial Court ought to have given benefit
of doubt to the accused-appellants.
Mr Agrawal relied on the following decisions of this Court in :
(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 [Coram : 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.
6. Learned
APP Mr Mengdey has opposed this appeal.
7. We
have examined the record and proceedings in the context of rival
submissions.
8. 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 packets were sealed, tied with a thread and wax-seal of the
Investigating Officer was affixed. The forwarding letter of the FSL
reflects the same situation as well. The FIR lodged by the Police
Sub-Inspector is also on the same line.
8.1 Learned
A.P.P. Mr. Mengdey concedes to the above fact situation.
9. 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.14), FIR (Exh.45)
and the forwarding letter of FSL (Exh.50), so also the deposition of
the raiding officer (Exh.44) 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.
10. 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.
11. 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.
12. 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:
It
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.
13. The
appeal thus stands allowed. The judgment and order dated 21.7.2009
rendered by learned Additional Sessions Judge, Ahmedabad (Rural), at
Viramgam, in Special NDPS Case No.1 of 2007, is hereby set aside. The
appellants are acquitted of the charges levelled against them and are
directed to be released from the prison forthwith, if not required in
any other case. Fine paid, if any, be refunded.
(A.L.
DAVE, J.)
(BANKIM
N. MEHTA, J.)
zgs/-
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