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CR.A/190/1997 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No.190 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.M.PANCHAL
AND
HONOURABLE
MR.JUSTICE H.B. ANTANI
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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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STATE
OF GUJARAT - Appellant
Versus
JAGDISH
RAVJIBHAI GONDALIA - Respondent
============================================================
Appearance
:
MR
ND GOHIL, APP for Appellant.
NOTICE SERVED for
Respondent.
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CORAM
:
HONOURABLE
MR.JUSTICE J.M.PANCHAL
and
HONOURABLE
MR.JUSTICE H.B. ANTANI
Date
: 05/09/2005
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.M.PANCHAL)
Instant
appeal filed under Section 378 of the Code of Criminal Procedure,
1973, is directed against judgment dated October 9, 1996 rendered by
the learned Additional Sessions Judge, Rajkot, in Sessions Case No.4
of 1995, by which the respondent is acquitted of the offence
punishable under Section 22 of the Narcotic Drugs & Psychotropic
Substances Act, 1985 (?Sthe Act?? for short).
2. The
facts emerging from the record of the case are as under:
In
or about October 94, Mr.M.R.Gohil was discharging duties as Police
Sub Inspector of Gundavadi Police Chawki. When he was present in ?SC??
Division Police Station, Rajkot, on October 7, 1994, he received an
information that the respondent, who was residing in upper portion of
house situated in Mill Para Sheri No.4, Rajkot, was in possession of
psychotropic substance namely, Diazepam Tablets, and was selling the
same. On receipt of information, PSI Mr.Gohil requisitioned services
of two panch-witnesses and informed them about the information
received by him. He reduced into writing the information received by
him and sent necessary report under Section 42(2) of the Act to his
immediate official superior. After drawing first part of panchnama
in the Police Station itself, he in the company of panch-witnesses
and other police personnel, went to the place indicated in the
information for carrying out raid. The raiding party went to Mill
Para Sheri No.4 and entered ‘della’
in which four houses in a row are constructed. The members of the
raiding party climbed staircase and found that there were two rooms.
On entering one of the rooms, the respondent was found present
therein. On interrogation, he disclosed his name to be Jagdish
Ravjibhai (the respondent). He was apprised of the information
received by PSI Mr.Gohil and also about the intention of the members
of raiding party to search the room. Before conducting the search,
the respondent was offered that room could be searched in presence of
a magistrate or a gazetted officer, but the offer was declined by the
respondent. Thereupon, the room in possession of the respondent was
searched. The search resulted into find of nine bottles out of which
eight bottles were white coloured with
yellow lid thereon whereas one bottle was painted blue coloured and
was having black lid. Out of nine bottles, seven bottles were found
having wrapper of paper with English writing to the effect that ‘it
contains 1000 tablets of Diazepam I.P.’.
The fact that tablets were Diazepam Tablets was also mentioned in
Hindi language. Below the said writing, it was mentioned that each
tablet contained Diazepam I.P. 5 mg., etc. The bottles were opened
and in eight bottles small plastic bags containing small tablets were
found. It may be stated that on other two bottles, no wrapper as
indicated above was found. As it was decided to have scientific
investigation in the matter, Mr.Ashra, who was Scientific Officer,
was summoned at the place of raid. He carried out scientific
examination of the tablets found on the spot. He gave his opinion
that the tablets were basic drugs. It was further found that out of
nine bottles, eight bottles were each containing 1000 tablets,
whereas one bottle, which was without wrapper, was containing 280
tablets. PSI Mr.Gohil demanded pass or permit from the respondent
authorizing him to possess Diazepam Tablets. No pass or permit could
be produced by the respondent. Therefore, quantity of Diazepam
Tablets was seized. The quantity seized was packed and on each bottle
seal bearing impression of ?SPolice Inspector, Rajkot City?? was
applied. Thereafter, drawing of second
part of panchnama was completed. PSI Mr.Gohil reduced into writing
his complaint against the respondent. He handed over muddamal,
panchnama, his complaint, cash
recovered, etc. to Constable Ratabhai to be handed over to Chandulal
Jivabhai, who was then PSO of ?SC?? Division Police Station. PSO of
Police Station handed over muddamal
etc. to Writer Head Mahendrabhai Pathak for safe custody. Writer
Head Mahendrabhai Pathak, in turn, made necessary entry in the
Register maintained at the Police Station for having received
muddamal etc. and
kept the same in a cupboard maintained in the Police Station for the
purpose of safe custody of muddamal. On
October 10, 1994, he handed over muddamal to
Police Constable Mr.Shantilal Govindbhai with instructions to deliver
the same to Forensic Science Laboratory (F.S.L.) for analysis. The
muddamal was analyzed
by the Chemical Examiner. The report of the analysis indicated that
the tablets contained Diazepam. PSO
of the Police Station handed over investigation of the complaint
lodged by Mr.Gohil to Mr.Gohil himself. Mr.Gohil recorded statements
of those persons who were found to be conversant with the facts of
the case. On completion of the investigation, the respondent was
chargesheeted in the Court of learned Special Judge, Rajkot, for
commission of offence punishable under Section 22 of the Act.
3. The learned Additional
Sessions Judge, Rajkot, to whom the case was made over for trial,
framed necessary charge against the respondent at Exh.1. It was read
over and explained to him. He pleaded not guilty to the same and
claimed to be tried. The prosecution, therefore, examined: (1)
Chemist Mr.Sanjay Vinodray Kamdar as P.W.-1 at Exh.6 to prove that
the respondent purchased Diazepam tablet from his shop; (2) Dr.Anil
Chhotalal Suchak as P.W.-2 at Exh.15 to prove that he had not issued
any prescription to the respondent authorizing him to purchase
Diazepam Tablet though such prescription was produced by the
respondent before Chemist Mr.Sanjay Kamdar;
(3) PSO Mr.Chandulal Jivabhai as P.W.-3 at Exh.16; (4) Writer Head
Mahendrabhai Ravishanker as P.W.-4 at Exh.19; (5) Police Constable
Ratabhai Dhanabhai as P.W.-5 at Exh.22; (6) Pradeepbhai Viththalbhai
Lakhtariya as P.W.-6 at Exh.25; (7) Police Constable Shantilal
Gonvindbhai as P.W.-7 at Exh.26; (8) Panch Manoj Pranlal as P.W.-8
at Exh.27; (9) Scientific Officer discharging
duties in Commissioner’s Officer Talsukh Nathalal Ashra as P.W.-9 at
Exh.31; (10) Panch Mahesh Mavjibhai as P.W.-10 at Exh.33; (11) Panch
Shailesh Shivlal Solanki as P.W.-11 at Exh.37; and (12) Investigating
Officer PSI Mr.Mahavirsinh Raghuvirsinh Gohil as P.W.-12 at Exh.38,
to prove its case against the respondent. The prosecution also
produced documentary evidence such as bills issued by Chemist
Mr.Kamdar to the respondent for having purchased Diazepam Tablets at
Exhs.7 to 10; necessary entry made in the Register maintained at ?SC??
Division Police Station, Rajkot, indicating that muddamal,
complaint lodged by Mr.Gohil, Cash Rs.46=00, panchnama, etc. were
handed over to PSO Mr.Chandulal Jivabhai at Exh.17; report by PSI
Mr.Gohil to PI ?SC?? Division Police Station to register the
offence at Exh.18; entry from the Register maintained at ?SC??
Division Police Station indicating that muddamal, etc. was
handed over to Writer Head Mahendrabhai for safe custody at Exh.20;
panchnama indicating search of shop of Chemist Mr.Sanjay Kamdar and
seizure of one bottle containing Diazepam Tablets at Exh.28;
intimation from PSI ?SA?? Division Police Station to Scientific
Officer Mr.Ashra to come to the spot for the purpose of analyzing
Diazepam Tablets seized at Exh.32, panchnama indicating search of
room occupied by the respondent and seizure of Diazepam Tablets at
Exh.34; rojkam prepared by PSI Mr.Gohil
regarding search and seizure of Diazepam Tablets at Exh.35; complaint
lodged by Mr.Gohil at Exh.39; memorandum prepared by Mr.Gohil
indicating that secret information received by him was reduced into
writing as required by Section 42(3) of the Act at Exh.40; report
under Section 102 of the Code of Criminal Procedure, 1973 made by PSI
Mr.Gohil to the learned Magistrate at Exh.41; extract of entry made
in the Register indicating that the information received by PSI
Mr.Gohil was reported to his immediate higher official superior at
Exh.42; report to higher official superior at Exh.47; receipt issued
by F.S.L. for having received muddamal for analysis at
Exh.51; report of analysis at Exh.52, etc. in support of its case
against the respondent.
4. After recording of
evidence of the prosecution witnesses was over, the learned Judge
explained to the respondent the circumstances appearing against him
in the evidence of prosecution witnesses, and recorded his further
statement as required by Section 313 of the Code of Criminal
Procedure, 1973. In his further statement, the respondent mentioned
that the room occupied by him was neither raided nor he was arrested
and that he was picked up and taken to Police Station. It was
maintained by him that no bottle containing Diazepam Tablets was
seized in his presence from Sanjay Chemist Store of Mr.Kamdar nor the
same was sealed in his presence. He asserted that bills produced by
the prosecution at Exhs.8, 9 and 10 were not bearing his signature.
However, he did not lead any evidence.
5. On appreciation of
evidence adduced by the prosecution, the learned Judge held that it
was proved by the prosecution that Chemist Mr.Sanjay Kamdar had sold
Diazepam Tablets to the respondent under the bills produced at
Exhs.7 to 10 and that those bills were bearing signatures of the
respondent. The learned Judge concluded that testimony of Dr.Suchak
recorded at Exh.15, established that he had not issued prescription
marked A, B, C, D to the respondent and that false prescriptions
were produced by the respondent before the Medical Store to obtain
Diazepam Tablets on the basis of which, Diazepam Tablets were sold
by the Chemist to the respondent. The learned Judge further found
that it was proved by the prosecution that in presence of panch
Manoj Pranlal and Panch Shailesh Shivlal, the Police Officer had
seized one bottle containing Diazepam Tablets from the shop of the
Chemist. The learned Judge noticed that no satisfactory evidence was
adduced by the prosecution to establish that muddamal bottles
were sealed at the place of the raid. According to the learned Judge,
it was satisfactorily proved that the room, which was raided, was in
possession of the respondent and that the respondent was in
occupation of the same. The learned Judge, however, noticed that PSI
Mr.Gohil, who had carried out raid, had also lodged the complaint and
investigated the same, which was contrary to the law laid down by the
Supreme Court in (1) Bhagwan Sinh vs. State of Rajsthan, A.I.R.
1976 SC 985; and (2)
Megha Sinh vs. State of Haryana, A.I.R. 1995 SC 2339, and
held that this course adopted by the Investigating Officer had caused
bias to the respondent. The learned Judge held that provisions of
Sections 42, 50 and 57 of the Act were complied with and that the
respondent was not entitled to possess Diazepam Tablets in view of
prohibition contained in Section 8 of the Act. According to the
learned Judge, no reliable evidence was adduced by the prosecution to
show that muddamal was sealed on the spot whereas evidence of
Writer Head Constable Mahendrabhai, examined at Exh.19, indicated
that muddamal bottles were containing two seals, i.e. one of
‘PSI’ and second of ‘PI’ and as this discrepancy was not explained
by any of the prosecution witnesses, the respondent was entitled to
reasonable benefit of doubt arising from the facts of the case. In
view of abovereferredto conclusions, the learned Judge has acquitted
the respondent of the offence punishable under Section 22 of the Act
by judgment dated October 9, 1996, giving rise to instant appeal.
6. This
Court has heard Mr.N.D.Gohil, learned Additional Public Prosecutor
for the State, at length and in great detail. This Court has also
undertaken a complete and comprehensive appreciation of all vital
features of the case and the entire evidence on record with
reference to broad and reasonable probabilities of the case. Though
the respondent is duly served, he has neither appeared in person nor
through his advocate.
7. From the record of the case, it
is evident that the raid was carried out in the room occupied by
the respondent on October 7, 1994 whereas one bottle containing
Diazepam Tablets was seized from the shop of Chemist Mr.Sanjay Kamdar
on October 10, 1994 and, thereafter, ten bottles were sent to F.S.L.
for analysis on October 10, 1994. Though Writer Head Mr.Mahendrabhai
Ravishanker examined at Exh.19 has stated in his evidence that
sealed muddamal was kept by him in a safe maintained at the
Police Station, he has not mentioned whether the safe was locked or
not nor has he stated that it was locked, and that he had maintained
the key of the safe with him for three days. Though the muddamal
was received at the Police Station on October 7, 1994, no
evidence is adduced by the prosecution to satisfactorily prove that
it was kept in safe custody at the Police Station till October 10,
1994 before it reached the Laboratory for analysis. Delay in dispatch
of muddamal to F.S.L. for analysis is not explained by any of
the prosecution witnesses. This becomes evident if one refers to
paragraph 3 of the testimony of Writer Head Mr.Mahendrabhai
Ravishanker recorded at Exh.19. A close scrutiny of the evidence on
record does not indicate at all that bottles seized were sealed at
the spot. This fact is neither mentioned by PSI Mr.Gohil in his
testimony nor borne out from the testimony of panch-witness nor even
from the contents of panchnama. Therefore, the learned Judge of the
trial Court, who had advantage of observing demeanour of the
witnesses was justified in coming to the conclusion that the case
against the respondent was not proved beyond doubt. What is
relevant to notice from the testimony of Writer Head Mr.Mahendrabhai
is that, according to him, when he was handed over muddamal, etc.,
all the muddamal bottles (dabbies) were bearing two
seals, i.e. one bearing the impression of ‘PSI’ and another of ‘PI’.
This fact is stated by the witness in paragraph 4 of his testimony
during the cross-examination by the defence. No attempt worth the
name is made by the prosecution to explain this discrepancy. Once the
evidence of this witness is accepted as true, the case of the
prosecution that nine bottles were seized and sealed with
impression of ‘PI’ becomes highly doubtful because neither it is
mentioned by PSI Mr.Gohil nor it is mentioned in the panchnama that
two different seals having different impressions were used while
sealing the nine bottles.
8. Further, what is mentioned in
the panchnama is that seal bearing impression ‘Police Inspector,
Rajkot Shaher’ was used whereas the report of the analysis
indicates that samples were having seal of ?SPolice Inspector,
Rajkot Saheb??. It means that it could not be satisfactorily
established by the prosecution that the samples were properly sealed
by Head of the raiding party. In these circumstances, the defect in
the prosecution case that PSI Mr.Gohil, who had raided the room
occupied by the respondent, had lodged the complaint and investigated
the same, becomes relevant. It is true that as explained in State
represented by Inspector of Police, Vigilance & Anti-Corruption,
Tiruchirapalli, T.N. vs. V. Jayapaul, (2004) 5 SCC 223, investigation
by the same Police Officer, who had lodged the First Information
Report, is not barred by law. However, there is no manner of doubt
that such investigation can be assailed on the ground of bias or real
likelihood of bias on the part of the Investigating Officer. The
question of bias would depend on the facts and circumstances of each
case and no broad or unqualified proposition that such investigation
by the Police Officer, who had lodged the First Information Report,
would be unfair or bias, can be laid down. However, there is no
manner of doubt that absence of evidence by the prosecution to
establish that a particular seal was applied on muddamal bottles
or that muddamal bottles were promptly sent to F.S.L. for
analysis, leads this Court to conclude that investigation by
Mr.Gohil of his own complaint has resulted into bias and prejudiced
the defence of the respondent. As observed earlier, one of the
bottles containing Diazepam Tablets was seized from the shop of
Chemist Mr.Sanjay Kamdar on October 10, 1994. Panchnama indicating
the same is produced by the prosecution at Exh.28. In the said
panchnama, it is specifically mentioned that bottle seized was white
coloured having yellow lid. However, Writer Head Mr.Mahendra
Ravishanker, whose testimony is recorded at Exh.19, has mentioned in
paragraph 3 of his testimony that on October 10, 1994, he had
received another bottle (dabbi) having black lid. Thus, the
prosecution could not even satisfactorily
establish before the Court that a particular dabbi containing
Diazepam Tablets was seized from the shop of the Chemist.
9. On overall view of the matter,
this Court is of the opinion that defects which go to the root of the
matter, have persuaded the learned Judge of the trial Court to record
acquittal of the respondent.
10. This
is an acquittal appeal in which Court would be slow to interfere with
the order of acquittal. Infirmities in the prosecution case go to the
root of the matter and strike a vital blow on the prosecution case.
In such a case, it would not be safe to set aside the order of
acquittal, more particularly when the evidence has not inspired
confidence of the learned Judge who had opportunity to observe
demeanour of the witnesses. As this Court is in general agreement
with the view expressed by the learned Judge, the Court does not
think it necessary either to reiterate the evidence of prosecution
witnesses or to restate the reasons for acquittal given by the
learned Judge and this Court is of the opinion that expression of
general agreement with the view taken by the learned Judge would be
sufficient in the facts of the case. This is so, in view of the
decisions rendered by the Supreme Court in the cases of (1) Girija
Nandini Devi & Ors. v. Bijendra Narain Chaudhari, AIR 1967 SC
1124, and (2) State of Karnataka v. Hema Reddy and another, AIR 1981
SC 1417. On overall appreciation of evidence, this Court is
satisfied that there is no infirmity in the reasons assigned by the
learned Judge for acquitting the respondent. Suffice it to say that
the learned Judge has given cogent and convincing reasons for
acquitting the respondent. The learned Additional Public Prosecutor
has failed to convince this Court to take a view contrary to the one
already taken by the learned Judge and, therefore, the appeal is
liable to be dismissed.
For
the foregoing reasons, the appeal fails and is dismissed. Muddamal to
be disposed of in terms of directions given by the learned Judge in
the judgment impugned in the appeal.
[J.M.PANCHAL,J.]
[
H.B.ANTANI,J.]
Rajendra
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