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2003 DIGILAW 335 (GUJ)

MOHMAD FAROOQ MOHMAD HUSEN MUNSHI v. STATE

2003-06-19

N.G.NANDI, RAVI R.TRIPATHI

body2003
RAVI R. TRIPATHI, J. ( 1 ) ALL these appeals filed under Section-374 (2) of the Code of Criminal Procedure, 1973 are directed against the judgement and conviction dated 3rd July, 1998 rendered by the learned Additional City Sessions Judge, Court No. 13, Ahmedabad-16 in Sessions Case No. 178 of 1997, by which the appellants-accused are convicted under Sections 29 and 18 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act" for short) and punished with rigorous imprisonment for 10 years and a fine of Rs. 1,00,000=00 (Rupees One Lac Only) each, in default to undergo rigorous imprisonment for six months. The learned Sessions Judge also ordered that as the accused are in jail and there is no order releasing them on bail, the period during which the accused have remained in jail be given as set off. ( 2 ) THE case of the prosecution is that on 3rd June, 1997, the Police Inspector of NDPS Cell, CID Crime, Gujarat State, Ahmedabad, while in office, received information from a private informant that near Dariapur Tambu Chowky, on Jordan Road - the way leading to Prem Darwaja on left hand side on footpath near `star Restaurant between 4. 00 to 5. 00 p. m. in the evening, three boys named (i) Salim wearing printed coloured shirt; (ii) Mohmmad Farooq Munshi, who is thin, having `nadachhadi (a cotton string of various colours) tied round his neck, wearing printed shirt; and, (iii) Asifkhan Pathan wearing full sleeve saffron colour checks shirt and light black colour jeans, are sitting for selling narcotic drugs. He made an entry in the register maintained for recording such private information and intimated the same in writing to the Superintendent of Police of NDPS Cell, Ahmedabad. He called the raiding party personnel, namely, Harjitsingh Jorawarsingh Parmar, Head Constable, N. N. Gosai, Head Constable, R. B. Thaker, Police Constable, D. A. Chavda, Police Constable, V. M. Chavda, etc. belonging to NDPS Cell. On their arrival along with two panchas, they were made aware of the information received. A preliminary panchnama was drawn between 15. 30 to 15. 45 hours. belonging to NDPS Cell. On their arrival along with two panchas, they were made aware of the information received. A preliminary panchnama was drawn between 15. 30 to 15. 45 hours. The police personnel, on reaching Wadigam Tambu Chowky, Dariapur from the NDPS Office at New Mental, alighted of the vehicle, proceeded towards `star Restaurant on Jordan Road, Prem Darwaja side and scattered half on the left side and half on the right side of the road. There, they found three persons, answering the description contained in the information, smoking "bidi". They were intercepted by the Head Constable-Harjitsingh, Head Constable-N. M. Gosai and Police Constable-D. A. Chavda. The Police Inspector, Shri Tahelramani, with the panchas and other personnel of the raiding party reached there. On inquiry, in the presence of the panchas, they disclosed their names to be Salim Abdul Karim Pathan, resident of Nagina Pol, Dariapur, Ahmedabad, Mohmad Farooq Mohmad Husain Munshi, resident of House No. 2554, Char Mulla-Ni-Pol, Chandan Talavadi, Dariapur, and Asifkhan Anwarkhan Pathan, resident of House No. 2955, Kazi Mohalla, Popatiawad, Dariapur. The Police Inspector gave his introduction as a Gazetted Officer and also that of the two panchas and the police personnel of the raiding party, informed them that the police has received the information that they sell narcotic drugs, hence, they are required to be searched; if they want to call any other Gazetted Officer or Magistrate, for their search being taken in presence of such an officer, an arrangement can be made. Those three persons declined for the same and volunteered themselves for the search. They were also informed that if they want to search the panchas and the police personnel, they can do so, to which also, they declined. On search of one of the three, namely, Salim, from the right pocket of his pant, three small packets hot sealed, in a plastic bag, were found containing light brownish powder, which on smelling in presence of the panchas, were found having a typical smell of a narcotic substance. Keeping all three bags as it is, on weighing by the Head Constable, Harjitsingh, one packet weighed 4 gms. and 880 mgs. , valuing approximately Rs. 4,880=00, it was given Mark-A; the second packet weighed 4 gms. and 960 mgs. , valuing Rs. 4,960=00 approximately, was given Mark-B; and, the third packet weighed 4 gms. and 730 mgs. , valuing Rs. and 880 mgs. , valuing approximately Rs. 4,880=00, it was given Mark-A; the second packet weighed 4 gms. and 960 mgs. , valuing Rs. 4,960=00 approximately, was given Mark-B; and, the third packet weighed 4 gms. and 730 mgs. , valuing Rs. 4,730=00 approximately, was given Mark-C. Slips were affixed with the help of stapler, writing down the weight. Thereafter, two packets, Mark-D and Mark-E, containing narcotic substance weighing 5 gms. 720 mgs. and 4 gms. 20 mgs. , valuing approximately Rs. 5,720=00 and Rs. 4,020=00 respectively, were recovered from Mohmad Farooq Husain Munshis right side pocket of his pant; and, a plastic bag, Mark-F, containing narcotic substance weighing 5 gms. 510 mgs. , valuing approximately Rs. 5,510=00 was recovered from Asifkhan Anwarkhan Pathans back side pocket of his pant. After keeping the hot sealed plastic bags bearing Mark-A, B, C, D, E and F in a small tin, the tin was closed and wrapped with the paper and a slip containing the signatures of the Police Inspector, Shri Tahel Ramani, and the panchas, was placed and the same was tied with a string and was wax sealed with the seal bearing inscription in English, "p. I. , N. D. P. S. , G. S. , Abad". The Police Inspector, Shri Tahel Ramani, filed the complaint against all the three persons for having found the contraband substance weighing 29 gms. 820 mgs. , valuing approximately Rs. 29,820=00, along with a detailed panchnama, an intimation given to the each of the accused before commencing the search of their person and offer in writing made to them bearing the signature of the accused along with office copy. A copy of the seizure memo of the contraband recovered from the accused along with the office copy and arrest memo of the accused in connection with the aforesaid complaint bearing the signatures of the three accused and Police Inspector, Shri Tahel Ramani, along with office copies, were given to Dariapur Police Station. The offence was registered and further investigation was undertaken. On receipt of the complaint, the contraband seized was sent to the Forensic Science Laboratory (FSL) for analysis. The FSL submitted its report of analysis, which indicated that the samples, Mark-A to Mark-F, contained morphine, codeine, acetyl-codeine, thebaine, narcotin, pepetherine, six mono-acetylmorphine and diacetylmorphine (heroin ). The offence was registered and further investigation was undertaken. On receipt of the complaint, the contraband seized was sent to the Forensic Science Laboratory (FSL) for analysis. The FSL submitted its report of analysis, which indicated that the samples, Mark-A to Mark-F, contained morphine, codeine, acetyl-codeine, thebaine, narcotin, pepetherine, six mono-acetylmorphine and diacetylmorphine (heroin ). On receipt of the report and completion of the investigation, the appellants-accused were chargesheeted for the offences punishable under Section 18 read with Section 29 of the Act in the City Sessions Court at Ahmedabad. ( 3 ) THE learned Additional Sessions Judge framed charge at Exh. 4 against the appellants for the offences punishable under Section 18 read with Section 29 of the Act. The charge was read over and explained to the appellants who pleaded not guilty and claimed to be tried. Therefore, the prosecution examined (i) Lalchand Gokaldas Verma, Panch, PW-1, Exh. 13; (ii) Ratilal Parmarbhai Bharwadbhai, Panch, PW-2, Exh. 14; (iii) Kuberbhai Purusottambhai Pandya, First Grade Jamadar, PW-3, Exh. 15, who was serving as P. S. O. at Dariapur Police Station on the date of the incident i. e. 3. 6. 1997; (iv) Vasudev Chandulal Raval, Police Head Constable, PW-4, Exh. 19, who was serving as Crime Writer Head at the relevant time at Dariapur Police Station; (v) Suraj Vishandas Tahelramani, Police Inspector, PW-5, Exh. 23, who conducted the raid and filed the complaint; (vi) Navinpuri Narsinhpuri Gosai, Head Constable, PW-6, Exh. 42, one of the member of the raiding party; (vii) Vikas Vinaykumar Sahay, Police Superintendent, PW-7, Exh. 43, who was immediate superior officer of the Police Inspector, who conducted the raid; (viii) Prahlad Rai Labhshankar Joshi, PW-8, Exh. 49, who was serving as Assistant Director, Forensic Science Laboratory, Ahmedabad during 1993 to 1997; (ix) Daulatsingh Udesingh Dabhi, PW-9, Exh. 55, who was serving as Police Constable at the relevant time and had taken the muddamal to the FSL; (x) Babubhai Kalidas Vasava, PW-10, Exh. 57, who was serving as Police Constable at Dariapur Police Station at the relevant time and was Writer attached to the Police Sub Inspector, Shri V. J. Bhatt; and, (xi) Shabbirali Mohmadali Saiyed, Police Sub Inspector, PW-11, Exh. 58, who, on his transfer to Dariapur Police Station, took charge of the investigation of the present case on 23rd July, 1997. The prosecution had also produced documentary evidence such as (i) Complaint, Exh. 58, who, on his transfer to Dariapur Police Station, took charge of the investigation of the present case on 23rd July, 1997. The prosecution had also produced documentary evidence such as (i) Complaint, Exh. 35; (ii) Panchnama, Exh. 28; (iii) Forwarding Note, Exh. 37; (iv) Letter registering the offence and indicating for further proceedings, Exh. 36; (v) Letter intimating about the search of the accused, Salim Pathan, Exh. 25; (vi) Letter intimating about the search of Mohmad Farooq Munshi, Exh. 26; (vii) Letter intimating about the search of Asifkhan Pathan, Exh. 27; (viii) Seizure Memo of Salim Pathan, Exh. 32; (ix) Seizure Memo of Mohmad Farooq Munshi, Exh. 33; (x) Seizure Memo of Asifkhan Pathan, Exh. 34; (xi) Letter intimating the arrest (Salim Pathan), Exh. 29; (xii) Letter intimating the arrest (Mohmad Farooq Munshi), Exh. 30; (xiii) Letter intimating the arrest (Asifkhan Pathan), Exh. 31; (xiv) Receipt issued by the FSL of accepting the muddamal, Exh. 50; (xv) FSL report, Exh. 54; (xvi) Extracts of the entry made in Station Diary of Dariapur Police Station bearing No. 25 dated 3rd June, 1997, Exh. 17; (xvii) Muddamal Receipt, Exh. 22; (xviii) Xerox copy of certified copy of the entry in the Muddamal Register, Exh. 21; (xix) Certified copy of the information (Exh. 24) register, Exh. 38; (xx) Report made to the superior officer, Exh. 45; (xxi) Report of successful raid, Exh. 46; (xxii) Receipt of acceptance of the FSL, Exh. 52; and, (xxiii) Forwarding Note - FSL, Exh. 53. ( 4 ) AFTER recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge explained to the appellants-accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded their statements, as required by Section 313 of the Code of Criminal Procedure, 1973. In their statements, the appellants denied the case of the prosecution, they did not lead any evidence in support of their defence. However, the accused stated that they were falsely implicated in the case and, therefore, they should be acquitted. ( 5 ) ON appreciation of the evidence adduced by the prosecution, the learned Additional Sessions Judge held that it was proved by the prosecution that the appellants were found in possession of the contraband substance and selling the same in abetment of each other and were helping each other in effecting the sale. ( 5 ) ON appreciation of the evidence adduced by the prosecution, the learned Additional Sessions Judge held that it was proved by the prosecution that the appellants were found in possession of the contraband substance and selling the same in abetment of each other and were helping each other in effecting the sale. However, the learned Additional Sessions Judge was pleased to hold that the prosecution is not able to prove involvement of the absconding accused and, therefore, answered point no. 1 partly in the affirmative, while point no. 2 in the affirmative. The learned Additional Sessions Judge was pleased to hear all the accused for punishment, as required under Section 235 (2) of the Code of Criminal Procedure. It was pleaded by the accused that a false case is filed against them and that nothing was recovered from them and, that they do not know as to why a false case is filed against them. The learned Additional Sessions Judge punished the accused-appellants, details of which are set out herein above, by judgement and order dated 3rd July, 1998. ( 6 ) HEARD Mr. Y. U. Malik, learned Counsel appearing in Criminal Appeal No. 786 of 1997, Mr. J. K. Parmar, learned Counsel appearing in Criminal Appeal No. 798 of 1998, and Ms. Sadhana Sagar, learned Counsel appearing in Criminal Appeal No. 1130 of 2000, for the appellants-accused, and Mr. N. D. Gohil, learned APP for the State. ( 7 ) MR. Y. U. MALIK, learned Counsel appearing in Criminal Appeal No. 786 of 1998, submitted that earlier, the appeals were heard by this Court and after full fledged arguments, the same were kept to submit a response on the point that if the Court holds that there is material for the charge under Section-29, whether the appellants would like to go for fresh trial. Mr. Malik submitted that before he could submit the response of the appellants, he had fallen ill and, therefore, the appeals could not be proceeded further. Mr. Mr. Malik submitted that before he could submit the response of the appellants, he had fallen ill and, therefore, the appeals could not be proceeded further. Mr. Malik further submitted that after having perused the papers in light of the aforesaid discussion, he is of the opinion that if the charge against the appellants under Section-29 is not proved and if the charge against the appellants under Section 18 is proved, there will not be any material difference, in the final outcome, in favour of the appellants and hence, he has decided not to press for the contention regarding there being no material to prove the charge under Section-29. Mr. Malik submitted that he has given a thoughtful consideration to the fact that there was individual seizure of the muddamal from each of the accused and the muddamal recovered from each of the accused was separately packed and sealed was then sent to the FSL in one common container, it cannot be said to have caused any prejudice to the individual accused-appellant and, therefore, he has decided not to press the contention pertaining to joint trial of all the three accused. Mr. J. K. Parmar, learned Counsel appearing in Criminal Appeal No. 798 of 1998 and Ms. Sadhana Sagar, learned Counsel appearing in Criminal Appeal No. 1130 of 2000, adopted the arguments of Mr. Y. U. Malik on this point. All the learned Counsel then argued the appeals on merits in which they are appearing for their respective clients. ( 8 ) WE have considered the submissions advanced by the learned counsel for the parties and reappreciated the entire evidence on record. ( 9 ) THE first contention raised by the learned counsel for the accused is that the description of the seal applied to muddamal in the panchnama, Exh. 28, and the complaint, Exh. 35, is different than the description given by the officer in-charge of the raid, PW-5, in his deposition at Exh. 23. The learned counsel submitted that description of the seal in the first two documents, namely, panchnama and complaint, is "p. I. , N. D. P. S. , G. S. , Abad", while the description of the seal in the deposition of the officer in charge of the raid is "p. I. , N. D. P. S. , G. S. , C. I. D. CRIME, Abad". The learned counsel submitted that from this, it should be inferred that the seal with which the muddamal was sealed at the time of seizure was changed giving rise to a presumption that the muddamal was tampered with, and, therefore, the prosecution against all the appellants must fail. ( 10 ) IT is also contended by the learned counsel for the appellants that though independent witnesses were available, the prosecution has not chosen to examine any one of them. In view of the fact that the panchas - independent witnesses have not supported the prosecution case, they are declared `hostile, leaving no independent evidence against the accused-appellant, of which, the benefit must be given to the appellants. ( 11 ) THE submissions of the learned counsel for the appellants does not warrant acceptance for the simple reason that physical impression of the seal is available in the `authorisation letter and it does bear all the words, in which the seal is described in the panchnama and the complaint. The physical impression of the seal does answer the description of the seal in the FSL report. The discrepancy in two sets of descriptions is only on account of a lapse on the part of the officer in describing the seal. There is no clinching evidence on the issue in favour of the appellants on which it could be held that there was change of the seal with which the muddamal was sealed at the time of seizure from the appellant-accused. In fact, physical impression of the seal on the `authorisation letter accompanying with the forwarding note ("ravangi Nondh") does answer the description of the seal made in the panchnama and the complaint. The physical impression found in the authorisation letter is fully corroborated by the description of the seal found by the FSL in intact condition on the muddamal container when it was received in the FSL. Had it been a case that the words describing the seal in the panchnama and the complaint were not foundin the physical impression of the seal sent to the FSL in the authorisation letter, the position would have been different. In that case, the Court may have to consider the submission of change of seal and not ruling out the possibility of muddamal being tampered with. In that case, the Court may have to consider the submission of change of seal and not ruling out the possibility of muddamal being tampered with. In fact, comparison of physical impression of the seal in the authorisation letter and the description of the same in the FSL report and having found all the words by which the seal is described by the officer in the panchnama and the complaint do not leave any room for this Court to hold that there was a change of seal and for that reason, there was any possibility of tampering with the muddamal. ( 12 ) IN fact, the learned counsel appearing for the accused before the Sessions Court had made a detailed cross examination on the point wherein the officer in charge of the raiding party has deposed that he has described the seal by mentioning, "p. I. , N. D. P. S. , G. S. , Abad", in the panchnama. He has deposed that he has described the seal in the complaint also in the same words. Now, if an officer takes assistance of the panchnama at the time of filing of the complaint, the description of the seal is bound to be the same and omission of a word or two of the seal will continue to be in the complaint also. But then, the witness has deposed that he has read the description of the seal in the FSL papers and the same is "p. I. , N. D. P. S. , C. I. D. CRIME, G. S. , Abad". This description tallies with the physical impression of the seal in the authorisation letter and perusal of the said physical impression of the seal makes it clear that while describing the same in the panchnama, which is relied upon at the time of filing of the complaint, the officer has described the seal in a particular manner, but only for that reason, it cannot be held to be a case of change of seal and on that basis, it cannot be held that the possibility of tampering of the muddamal is not ruled out. ( 13 ) AS regards the contention of the learned counsel for the accused that the prosecution has not examined independent witnesses though available, no any specific reference to any particular witness is made, which according to them, was required to be examined to prove the case of the prosecution. If reference is to the panch witnesses, the panch witnesses were independent witnesses and it is not suggested by the learned counsel for the appellants that the panch witnesses were in any way biased witnesses. The fact that the panch witnesses, who were independent persons, have turned hostile, cannot give an occasion to the learned counsel for the appellants to contend that the prosecution has not examined any independent witness. It is a settled position of law that even when the panch witnesses turn hostile or do not support the case of the prosecution, conviction can be recorded relying on the evidence of the Police Officer/s. In such a situation, what is required to be done is to be more careful while appreciating the evidence of the Police Officer/s, who are examined by the prosecution. ( 14 ) MR. N. D. GOHIL, learned APP, for the respondent-State, rightly invited the attention of the Court to a judgement of the Division Bench of this Court (Coram: J. M. Panchal and J. R. Vora, JJ.) in Criminal Appeal No. 12 of 2002 rendered on 5th/6th February, 2002 wherein the Court has dealt with a similar contention. ( 15 ) THE precise contention raised by the learned counsel appearing in the said case was that `the evidence of the police officers is not supported by an independent witness and, therefore, the prosecution case should be disbelieved. The Division Bench was pleased to answer the said contention by relying upon a judgement of the Apex Court in the matter between Aher Raja Khima vs. State of Saurashtra, reported in AIR 1956 SC 217 , wherein it is held that, "the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. What is laid down for the guidance of the Court is that the attitude to distrust and suspect the police officer without good ground, therefore, could do neither credit to the magistracy nor good to the public and it can only run down the prestige of the police administration. " ( 16 ) WE have perused the evidence on the record of the case, more particularly, of the officer in charge of the raid and other police officers who are examined by the prosecution in support of their case and we do not find anything for which the evidence of the police officer, who was in charge of the raid, is required to be discarded. We are supported in our view by the observations made by the Division Bench in the aforesaid judgement, which reads as under :". . . . . WE further find that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over board as unreliable. It must be realised that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasised that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision of the case were to depend solely on the testimony of panch witnesses regardless of the evidence of the independent witnesses, in theory, it would be giving a right of `veto to the panchas so far as the question of culpability of an accused is concerned. If the evidence of police officer is otherwise found to be true and dependable, judicial pragmatism requires that merely because the panchas do not support, it should not be made a ground to discard his evidence". . . . . . . . . . "in view of the aforesaid discussion, the plea that as the panch witnesses have not supported and not corroborated the evidence of the other witnesses examined by the prosecution, the appellants are entitled to acquittal, does not find favour with this Court and the same is rejected. . . . . . . . . . "in view of the aforesaid discussion, the plea that as the panch witnesses have not supported and not corroborated the evidence of the other witnesses examined by the prosecution, the appellants are entitled to acquittal, does not find favour with this Court and the same is rejected. ( 17 ) ON perusal of the evidence on the record of the case, it is clear that there is no evidence to suggest abetment and conspiracy and, therefore, Section 29 of the Act is not attracted. However, each individual accused is proved to have possessed the contraband substance in violation of Section-18 of the Act and, therefore, each appellant is liable for their individual act of possessing the contraband illegally. This act is also proved by the evidence on record as per the panchnama, Exh. 28, and the evidence of PW-5, officer-in-charge of the raid, Exh. 23 and the report of FSL, Exh. 24. Therefore, the conviction of each individual accused-appellant recorded by the learned Additional Sessions Judge, on appreciation of evidence, does not call for any interference in these appeals. The conviction and sentence of the appellants under Section-18 of the Act is confirmed and the appeals being devoid of merits are liable to be dismissed and are accordingly dismissed. .