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CR.A/856/1998 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 856 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
======================================
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 ?
======================================
STATE
OF GUJARAT
Versus
GUNVANTLAL
JAWAHARLAL BHAIYA & ANOTHER
======================================Appearance
:
Mr Maulik Nanavati, Additional
Public Prosecutor for the State
MR BHAVIN S RAIYANI for the
respondents
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 02/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal calls in question the correctness of judgment and
order dated 30.06.1998 passed by the Additional Sessions Judge,
Vadodara in N.D.P.S. Case No. 2 of 1998. By the impugned judgment,
the Trial Court has acquitted the present respondents ? original
accused of the offence punishable under Sections 20(b) and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
Heard
Mr. Maulik Nanavati, learned Additional Public Prosecutor for the
State and Mr. Bhavik Raiyani for the respondents. We have perused
the judgment and gone through the record of the case.
At
the trial, the prosecution led evidence that on the basis of secret
information received by the police that the respondents were selling
ganja at their house, a raid was carried out and on search of the
house of respondents 5 packets of ganja, each weighing 150 grams,
were recovered. Except the police officials forming part of the
raid, the other witnesses examined by the prosecution ? panch
witness and the witness who weighed the contraband material at the
time of seizure, did not support the prosecution case. The other
panch witness was not examined. The Trial Court, in absence of
independent corroboration, found it unsafe to rely upon the evidence
of only police officials, and accordingly acquitted the respondents.
Mr.
Nanavati, learned Prosecutor for the State, has vehemently submitted
that the Trial Court was in error in rejecting the evidence of
officials of raiding party only on the ground that they were police
officials. He has submitted that nothing has been brought out by the
defence in the cross-examination of any of these police witnesses
that they are not speaking the truth, or that they are interested in
securing the conviction of the accused. He has further submitted
that when there is nothing on record to shake the credibility of any
these witnesses, there was no justifiable reason for the Trial Court
not to believe their evidence about the manner in which the raid was
conducted and muddamal seized from the house of the respondents. He
has also submitted that all mandatory provisions of law as regards
procedure to be following before and during the raid have been
followed in the present case. It is true that no infirmity attaches
to the testimony of police officials, merely because they belong to
the police force and there is no rule of law or evidence which lays
down that conviction cannot be recorded on the evidence of the police
officials, if found reliable, unless corroborated by some independent
evidence. The rule of prudence, however, requires only a more
careful scrutiny of their evidence since they can be said to be
interested in the result of the case projected by them. Where the
evidence of the police officials, after careful scrutiny, inspires
confidence and is found to be trustworthy and reliable, it can form
the basis of conviction and the absence of some independent
corroboration to their evidence, does not in any way affect the
creditworthiness of the prosecution case. Merely because the panch
witnesses and the witness who brought the weights and scale to weigh
the muddamal did not support the prosecution case and were declared
hostile by itself would not be a sufficient ground for disbelieving
the police witnesses and discard the prosecution case.
However,
the appeal must fail for another reason. We notice from the evidence
of panch witnesses and the police officials that there is discrepancy
as regards the sample of muddamal seized and sent to the laboratory
for examination. PSI Jaiminmiya Thakor (PW-3), who was member of the
raiding party, has deposed that 5 packets of ganja were found from
the house of the respondents. The contents of all these five packets
were put in one packet and the same was tied with a thread.
Signatures of panch witnesses and PI Rana were put on the paper slip
and the same was sealed with the packet and taken in custody. The
panchnama also records that the packet was tied with red thread and a
slip containing signatures of both the panchas and PI Rana was put
with the packet and thereafter sealed. PI Rana (PW-5) also states
that contents of the five packets found from the house of respondents
were emptied and packed in a white paper on which red thread was
tied, slip having signatures of two panch witnesses was fixed and
thereafter the packet was stamped with the seal of PI Makarpura. He
does not mention about having put his signature on the slip affixed
to the packet. Interestingly, the Forensic Science Laboratory Report
(Exh. 14) records that the slip found with the packet bears the
signatures of only the panch witnesses. This is not the only
discrepancy. PI Rana and PSI Thakor state in their testimony that
the ganja that was found from the house was in powder form, almost in
the nature of crushed cannabis. Even the pacnhnama shows that ganja
found was crushed and in powder form. The Forensic Science
Laboratory report however shows that the sample sent to it for
examination ?Sdry fragmented stem axis, few greenish dried flowers
and a few dried yellow fruits??. There is a marked difference in
the nature of ganja stated by the witnesses to have been recovered
and the one sent for examination to the laboratory. The difference
in form is quite obvious and it is improbable to believe that flowers
and stems could have been mistaken as powder. We also find from the
record that no witness has been examined by the prosecution to prove
that the seized contraband was securely kept in the police station
before being sent to the laboratory for examination. Only one
witness, PW-4 Constable Gordhanbhai Ramjibhai has been examined and
he only deposes about carrying the sealed packet from the police
station on 9.12.1997 to the laboratory. Where was the muddamal kept
between 7.12.1997 and 9.12.1997 and who kept it is not forthcoming.
No registers have been produced on record to show that proper entries
regarding the receipt, storage and being sent to laboratory were made
by the police officials. This is a serious infirmity and though the
samples were received in the Forensic Science Laboratory in a sealed
condition, the possibility of them being tampered prior to their
being sent to the laboratory cannot be ruled out. It is true that
provisions of Sections 52 and 57 of the Act are directory. Violation
of these provisions would not ipso facto violate the trial or
conviction. However, the Investigating Officer cannot totally ignore
these provisions and such failure will have a bearing on appreciation
of evidence regarding arrest of the accused and seizure of the
article. Here there is no evidence o record to establish that the
muddamal parcel was sealed by the officer-in-charge of the police
station as required under Section 55 of the Act. Further there is no
evidence to show that the Investigating Officer followed the
procedure prescribed in Section 57 of the Act of making full report
of all particulars of arrest and seizure to his immediate superior
officer. Also, the evidence on record is sketchy and not conclusive
on the point that the sample sent to the Chemical Analyser was the
same that was seized from the house of the accused.
Under
the circumstances, we are of the considered opinion that the
prosecution has miserably failed to prove that the muddamal allegedly
recovered from the house of the respondents was properly seized and
stored prior to it being sent to the laboratory for examination and
the possibility of it being tampered with or even replaced cannot be
ruled out. Therefore, though not completely agreeing with the
reasoning given by the Trial Court for acquitting the respondents, we
find that on the basis of the aforesaid evidence and faulty
investigation by the prosecution, it would not be safe to convict the
respondents for a serious offence of possessing and selling ganja.
In
the result, the appeal filed by the State is therefore dismissed and
the acquittal of the respondents is confirmed.
(Bhagwati
Prasad, J.)
(S.R.Brahmbhatt,
J.)
*mohd
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