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2011 DIGILAW 364 (GUJ)

Shyamrao Hanumantrao Rao v. State of Gujarat

2011-04-28

P.P.BHATT, RAVI R.TRIPATHI

body2011
JUDGMENT : P.P. Bhatt, J. The above mentioned appeals are preferred against the judgment and order passed in Special NDPS Case No.2 of 2005 dated 30th June 2007 passed by the learned Special Judge, Surat, by which the present appellants have been convicted for the offences under section 8(C) and 20(B)(1) read with section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'). Aggrieved by and dissatisfied with the above judgment and order passed in Special NDPS Case No.2 of 2005 dated 30th June 2007, the appellants have preferred these appeals. 2. Brief facts of the prosecution case are as under: 2.1 As per the prosecution case Shri P.R. Pandya, Police Inspector, Pandesara Police Station, Surat City on 26.12.2004 at 1515 hrs received an information from a private informer that in L.I.G. 512, Block No.295, Room No.2681 OF Gujarat Housing Board at Pandesara, one person named Babula Alias Bullu, son of Upendra Parida, who is staying there as a tenant of one Shri Azadbhai, in collusion with four other persons, illegally selling Marijuana (Ganja) and having bulk quantity of Marijuana (Ganja), which is lying in the room. Thereafter, he made entry in the Station Diary at 1520 hours and its written information was forwarded to the Deputy Police Commissioner, South Zone, Surat City. In turn, they gave instructions for further action. Thereafter, Assistant Head Constable, Shri Panchiyabhai Rajaram was informed to arrange for two reputed persons to act as panchas for raid proceedings, other Police personnel were also called. During that, Head Constable Panchiyabhai had called Shri Kamleshbhai Chaturvedi Patel, residing at C/711, Akash Bhumi Apartment, G.H. Board, Pandesara, Surat, and Shri Kishorbhai Mahipatra Valdure, residing at B/147, L.I.G., 536, G.H. Board, Pandesara, Surat to act as Panchas. They and present Prohibition Inspector, L.G. Yadav, Prohibition Constable Dipsingh Kanji, Assistant Head Constable Panchia, Assistant Head Constables Rajaram, Aiyazuddin Nizamuddin, Hasmukh Gomanbhai, A.P.C. Kanti Gordhanbhai Valji Manubhai, Hitendra Shreeram, Farasram Mansukh, Umesh Bhikha, Netaji Kalu and Ramesh Maganbhai, etc. have been apprised of the facts, Panchas were provided information and instructed to make inter-se search of the persons of raiding party and the Panchas and verify that no illegal goods/articles were there with them. Thereafter, necessary instructions were given to the raiding team. For the purpose of raid proceedings of the said case they took necessary papers and instruments. have been apprised of the facts, Panchas were provided information and instructed to make inter-se search of the persons of raiding party and the Panchas and verify that no illegal goods/articles were there with them. Thereafter, necessary instructions were given to the raiding team. For the purpose of raid proceedings of the said case they took necessary papers and instruments. Thereafter, preliminary Panchnama was drawn between 1600 hrs and 1630 hrs in Police Station and made entry of proceedings in the Station Diary of the Police Station. Thereafter, checking of Government jeep No.GJ-G-758 and Tata Sumo bearing No.GJ-G-378, was done in presence of the Panchas. Thereafter, Panchas and raiding party persons started from the Police Station and came to Gujarat Housing Board premises, LIG, 512, Block No.295, Room 2681, in the said vehicles. The door of the said premises was half opened, they pushed it and on looking inside the room, found 5 persons sitting there with one iron sheet drum and weighing instrument. 2.2 On being asked their names, they stated as (i) Babula Alias Bullu, son of Upendra Parida, residing at Pandesara G.H. Board, LIG 512, Block No.295, Room No.2681, in Azadbhai's room, Surat, having native at Kavisugnagar, Udia Police Station, Kavisugnagar, District Ganjam, Orissa; (ii) Ravindra Bansidhar Bahera, residing at Pandesara G.H. Board, LIG 512, Block No.295, Room No.2681, in Azadbhai's room, Surat, having native at Village Sikula, Thana Pursotampur, District Ganjam, Orissa; (iii) Ramu Hari Sharma, residing at Pandesara G.H. Board, LIG 512, Block No.295, Room No.2681, in Azadbhai's room, Surat, having native at Village Darakot, Thana Adka, District Ganjam, Orissa, (iv) Shyamrao Hanomatrao, residing at Magadugam, Thana Narasampeth, District Nalgonda, A.P., and (v) Mohamed Salim Gulam Mustafa Sheikh, residing at Navsari Bazar, near Bamba Gate, Irani Ni. Chawl, Ward No.2, Room No.4894, Surat. They have been given introduction of the P.I., Mr. P.R. Pandya, Pandesara Police Station, Surat city and Mr. G.B. Chauhan, Asst Police Commissioner, In-Charge 'F' Division, Surat City, with staff persons and panchas. They all have been informed in Gujarati and Hindi languages that they have got exact information that the accused have kept narcotic contraband goods, Marijuana (Ganja) in their possession in an occupied rented room for illegal sale/ purchase. They were also informed about search of the room to be carried out by the Police Inspector. They all have been informed in Gujarati and Hindi languages that they have got exact information that the accused have kept narcotic contraband goods, Marijuana (Ganja) in their possession in an occupied rented room for illegal sale/ purchase. They were also informed about search of the room to be carried out by the Police Inspector. The appellants were also informed as to whether they want to carry out search in presence of or before any Magistrate or any Gazetted Officer, as they have right to do so. But in response thereto, they informed that they have no objection if the Police Inspector conducts the search. Thereafter, the Investigating Officer explained different extracts as required under section 42 and 50 of the NDPS Act in Hindi and Gujarati languages to them. One copy each of both abstracts were given to them and their signatures were obtained on the office copy. Panchas also put their signatures on it. Thereafter, the said five persons were frisked. During the physical search of all the five persons, from the pocket of the pant of Babula Upendra, cash was found amounting to Rs. 1000/-, one Nokia Mobile, Model 1100 was also found. Likewise, while making physical search of Ravinder Bansidhar Bahera, an amount of Rs. 240/- was found from his pocket. Similarly, while making physical search of Shyamrao Hanumantrao, Rs. 1620/- was found from his pocket and one LG Reliance Mobile of Model No.2030 was also found. Similarly, an amount of Rs. 255/- was found from the pocket of Mohamed Salim Ghulam Mustafa; one LG Reliance Mobile of Model No.2030 was found from the pocket of said Salim G. Mustafa. Thereafter, the team started search of the said room, the entrance door situated on western direction. The size of the room was 16' x 19'. Its roof had steel angle and cement sheets. Between the angle, ceiling fan was fitted. Near the southern side wall, there was an iron bed having mattress. On its eastern side, there was constructed Pali. One iron weighing instrument having description of 2 Kilograms and Class 'C' was lying near it. The plastic bottles were lying there filled with water. On the south eastern side corner, one empty carton was also lying. Towards northern side wall, one Grey coloured drum was lying. On its eastern side, there was constructed Pali. One iron weighing instrument having description of 2 Kilograms and Class 'C' was lying near it. The plastic bottles were lying there filled with water. On the south eastern side corner, one empty carton was also lying. Towards northern side wall, one Grey coloured drum was lying. While looking inside the drum it was filled up with green coloured seeds with flower leaves wetted botanic goods which smelt before the panchas and verified and found special type of smell and on being asked, all the five persons have informed that it is Marijuana (ganja). Therefore, they instructed Police Constable- Valjibhai to call officer of the Forensic Science Laboratory (FSL) for examination of the doubtful botanic goods. The Assistant Head Constable-Ayazuddin Shaikh was asked to arrange for weighing machine. Upon search of the said room, a drum was found filled with botanic goods, There is one tube light in 'on' condition. The western and northern side walls were fitted with tiles. One white coloured electric meter having description in English 'Syntex' and 'Danger' with numbers 04022749' and 344528' was also lying there. No other doubtful material was found from the said room during the search. By the time search was carried out, the Police Constable Valji Manu came with Mr. Bhikhubhai Mangabhai Badarshahi, FSL Officer and upon examining the said botanic material by their instruments, it was found that the said botanic goods was Marijuana (ganja). Thereafter, for further laboratory analysis, it was sent to FSL, Gandhinagar. They were also informed to make two separate samples of Marijuana, botanic goods. By that time, Assistant Head Constable Ayazuddin brought one person, namely, Sagarbhai Fatelaji Jain, resident of Opposite Sakar Bhumi Apartment, B/3112, Pandesara, Surat, with weighing instrument. He had the weighing instrument with weights of 10 Kgs. Since it was not possible to weigh Marijuana filled up in the drum at a time, therefore, it was taken out and spread out by putting Chadar in the said room. The said Sagarbhai has weighed by his weighing instrument of 1 KG one after the other. The total weight of all Marijuana found from the drum was 37 Kgs and 500 gms. The said Sagarbhai has weighed by his weighing instrument of 1 KG one after the other. The total weight of all Marijuana found from the drum was 37 Kgs and 500 gms. Out of the said Marijuana, the FSL Officer, filled up 2 plastic bags with sample having weight of 250 grams weight and put them in cloth bags and obtained the signatures of panchas and signatures of raiding party and tied with thread and gave marks 'A' and 'B', respectively. Both the bags sealed with lakh and seal of Pandesara Police Station was applied. The remaining Marijuana (ganja) was filled up in the said drum and a slip was put with the signatures of panchas and the drum was closed. It was handed over to the Investigating Officer and it was marked as Mark 'C' on each slip sealed by the Police Inspector, Pandesara Police Station. 3. Pursuant to the said incident, charge sheet came to be filed by the Police authorities under sections 8(C) and 20(B)(1) read with section 29 of the NDPS Act against the present appellants. 4. Thereafter, it was registered as NDPS Case No.2 of 2005 and charge was framed at Exh.8 on 3rd October 2005. Charge was read over and explained to the accused. The accused denied all the charges and pleaded not guilty and claimed to be tried. Hence the prosecution was asked to prove the guilt against the accused. 5. To prove the guilt against the accused, the prosecution examined several witnesses and has produced and relied upon several oral as well as documentary evidence. 6. On submission of closing purshis by the learned APP, learned Judge recorded further statement of the accused under section 313 of the Code of Criminal Procedure, wherein they denied all the charges. Thereafter, on affording an opportunity of hearing to the learned advocates appearing for the respective parties, the learned Judge delivered the impugned judgment and convicted for offence referred hereinabove and sentenced for 10 years rigorous imprisonment and fine of Rs. 1 lac, in default one year imprisonment, giving rise to the present appeals. 7. Heard Mr. Shakeel A. Qureshi and Mr. Rushabh R. Shah, learned advocates for the appellants and Mr. Kartik Pandya, learned Additional Public Prosecutor for the respondent-State. 8. 1 lac, in default one year imprisonment, giving rise to the present appeals. 7. Heard Mr. Shakeel A. Qureshi and Mr. Rushabh R. Shah, learned advocates for the appellants and Mr. Kartik Pandya, learned Additional Public Prosecutor for the respondent-State. 8. The learned advocate for the appellants has referred to and relied upon various grounds in para 3 of the appeal and contended that the judgment and order passed by the learned Special Judge is illegal, improper, unjust and is passed without considering the material on record. The learned advocate has further contended that the learned Special Judge has not properly appreciated the evidence produced before him in its true perspective. It is further contended that the learned Special Judge has not properly considered the evidence of the prosecution which in fact, does not involve the present appellants. It is further contended that by no stretch of imagination the present appellants can be said to be guilty of commission of offence, for which they have been charged with. It is further contended that the learned Judge has failed in not considering the fact that the prosecution has failed in establishing that the appellants were in conscious possession of the contraband goods, 'Ganja'. It is contended that the prosecution has also failed to prove that the appellants were in occupation of the premises where contraband goods is recovered. It is further contended that that the prosecution has also failed to establish that the 'Muddamal' which is recovered from the room in question was the same which has been examined by the FSL officers. It is further contended that the learned Special Judge has not properly considered the evidence put forth by the appellants that they were not at all present at the time of commission of the alleged offence. It is further contended that the learned Special Judge has not properly considered the defence of alibi put forward by the defence. 8.1. It is further contended that in a statement recorded under section 313 of the Code of Criminal Procedure it was specifically stated that the Police has registered a false case against the accused no.4 and he came to Surat only a day ago for the business purpose and he has been falsely implicated. 8.1. It is further contended that in a statement recorded under section 313 of the Code of Criminal Procedure it was specifically stated that the Police has registered a false case against the accused no.4 and he came to Surat only a day ago for the business purpose and he has been falsely implicated. Not only that in order to prove his presence at a different place he has also examined two witnesses, viz., Exh.70-Manjur Ali Habibbhai, owner of the Guest House, where the appellant was staying; Exh.72-witness, Nagula Ramesh Rajmal. He has also specifically stated that the appellants were somewhere else. Along with deposition of these two witnesses, Exh.70-Manjur Ali Habibbhai has also produced documentary evidence showing entries and register of the guest house. Copies of the said register of the hotel are produced at Exh.73. It is further contended that the learned Special Judge has not given proper finding in this regard. So far as deposition of these two witnesses is concerned the prosecution has even not cross-examined them. Therefore, the contents of these two witnesses and depositions have been proved by the present appellants. Despite this fact the learned Special Judge has convicted the present appellants along with the other co-accused, which is illegal, improper and against the provisions of law. It is further contended that when the raid was carried out the house was in occupation of other accused persons. Even the prosecution has not proved either by documentary evidence or by oral evidence that at the time when raid was carried out on 26th December 2004 the house was in occupation by the appellants. 8.2 It is further contended that the learned Special Judge has delivered the judgment and order of conviction based on mere assumptions and presumptions. 8.3 It is further contended that so far as the conviction under sections 8(C) and 20(B)(1) read with section 29 of the NDPS Act, separate conviction under section 29 of the NDPS Act is unwarranted and not permissible in law. It is further contended that the said section is not an independent section. The main charge against the appellants is under sections 8(C) and 20(B)(1) read with section 29 of the NDPS Act. Therefore, section 20(B)(1) of the NDPS Act is parent section. So far as sec.29 of the NDPS Act is concerned it relates to abetment and criminal conspiracy. It is further contended that the said section is not an independent section. The main charge against the appellants is under sections 8(C) and 20(B)(1) read with section 29 of the NDPS Act. Therefore, section 20(B)(1) of the NDPS Act is parent section. So far as sec.29 of the NDPS Act is concerned it relates to abetment and criminal conspiracy. It provides punishment for abetment and criminal conspiracy. So far as punishment for abetment is concerned, it would be the same as provided under the parent section, viz. 8(C) of the NDPS Act. However, the learned Special Judge recorded separate conviction under section 29 of the NDPS Act. The conviction recorded by the learned Special Judge is improper. 8.4 It is further contended that there are gross contradictions and omissions in the prosecution witnesses in respect of the mandatory requirements of sec.50. The learned Special Judge has disbelieved that the arguments on the ground that sec.50 of the NDPS Act is not applicable as search is made of the room and not of the person of the appellant herein. In that respect it is contended that charge against the appellant is of having possession of contraband 'ganja', dealing with it, selling and distribution thereof. Accordingly, a search of the person of the appellant was also made and a mobile phone as well as currency notes were recovered. Therefore, the Police authorities were aware of the fact that 'ganja' was found in the room. Therefore, the appellant must have some goods on his person. Thus, when search of a person being made physically, in that case certainly sec.50 of the NDPS Act would be attracted and that is required to be complied with. It is further contended that in the present case there is a clear breach of section 50 of the NDPS Act, which is mandatory. However, the learned Special Judge has not considered this aspect properly by appreciating the evidence on record. 8.5 It is further contended that so far as another mandatory provision, i.e. sections 42(1) and 42(2) of the NDPS Act are concerned the said sections deal with as to how search is to be made and when search is to be made. It is further contended that in the present case there is a breach of above mandatory requirements. 8.5 It is further contended that so far as another mandatory provision, i.e. sections 42(1) and 42(2) of the NDPS Act are concerned the said sections deal with as to how search is to be made and when search is to be made. It is further contended that in the present case there is a breach of above mandatory requirements. However, the learned Judge while appreciating the evidence on record has not properly dealt with these aspects and has not considered the above legal position in its true perspective. 8.6 It is further contended that the identity of 'muddamal' has not been proved and contraband ganja which has been allegedly recovered from the premises where all the accused persons were present was not the same which was sent to the FSL. The prosecution is not able to prove the said 'muddamal' which has been sent to FSL. However, the learned Special Judge has not considered this aspect properly in the judgment delivered by him. It is further contended that looking to the deposition of the Police Inspector, he has not thrown light that the contraband which was seized was kept in proper and safe custody in the Police Station for the purpose of sending it to the FSL. It is further contended that CR.A/1028/2007 14/28 Judgment this aspect has also not been corroborated by the deposition of another witness, namely, Azad Ramaniklal, who was examined at Exh.44. It is further contended that the learned Special Judge has not considered this aspect in its proper perspective while appreciating the evidence on record. 8.7 It is further contended that so far as witness, Dineshbhai G. Chaudhary is concerned he is PSO and he has no personal knowledge regarding commission of crime. The learned Special Judge has relied upon the evidence of that witness-Rohidas Hilal Patel, Panch witness, who has not supported the case of prosecution regarding seizure of Muddamal and entry in the register. He deposed that he is not having any knowledge. Similarly, Harish Solanki, Exh.50 has also not supported the case and he has also not thrown light in respect of the preservation of the muddamal by PSO. However, the learned Special Judge has not properly considered this aspect and has placed reliance while discussing the evidence on record. He deposed that he is not having any knowledge. Similarly, Harish Solanki, Exh.50 has also not supported the case and he has also not thrown light in respect of the preservation of the muddamal by PSO. However, the learned Special Judge has not properly considered this aspect and has placed reliance while discussing the evidence on record. 8.8 It is further contended as regards witnesses no.9, 10 and 11 are concerned, all of whom are from the Office of the FSL and they have stated about the contents of the muddamal, but so far as the involvement of the appellants and the commission of crime is concerned there is no material brought on record in the deposition of this witness by the prosecution. However, the learned Special Judge has relied upon the said evidence while convicting the appellants. It is further contended that so far as witnesses no.9, 10 and 11 are concerned the fact that they have admitted in their own cross-examination shows non compliance of sections 42(1) and 42(2) of the NDPS Act. Therefore, looking to the deposition of the witnesses, the learned Trial Judge did not have option but to acquit the appellants. 8.9 It is further contended that as regards sec.52 of the NDPS Act is concerned there is no compliance at the time of receiving the secret information. Exhibit 20, which is required to be reduced in writing and thereafter without warrant the Police authorities cannot raid any premises. In that case the Police authorities were required to pass a resolution for the proceedings as required under sec. 165 of the Code of Criminal Procedure. In the present case in the deposition of Police witness which is coming forth that the requirement of sec.165 read with sec.52 was subsequently got up and has not been proved. It is further contended that the entire search and seizure is doubtful. However, the learned Special Judge has not properly considered this aspect. It is further contended that internal page 20, para 10 of the judgment has given reasoning. It is contended that about 42 authorities have been cited by the appellant's advocate. However, how the said authorities are helpful to the appellants has neither been dealt with properly nor considered by the learned Special Judge. It is further contended that internal page 20, para 10 of the judgment has given reasoning. It is contended that about 42 authorities have been cited by the appellant's advocate. However, how the said authorities are helpful to the appellants has neither been dealt with properly nor considered by the learned Special Judge. It is further contended that the finding given by the learned Judge is erroneous and the judgment and order is required to be quashed and set aside. 8.10 The learned advocate for the appellants has relied upon the following authorities : (1) Kolluttumottil Razak v. State of Kerala, (2000) 4 SCC 465 (2) Beckodan Abdul Rahiman v. State of Kerala, (2000) 4 SCC 229 (3) Vinod v. State of Maharashtra, (2002) 8 SCC 351 (4) Sekar Alias Raja Sekharan v. State represented by Inspector of Police, T.N, (2002) 8 SCC 354 (5) State of W.B. And others v. Babu Chakraborty, A.I.R. 2004 SC 4324 (6) Dilip and another v. State of M.P., A.I.R. 2007 SC 369 (7) Directorate of Revenue and another v. Mod. Nisar Holia, (2008) 2 SCC 370 (8) State of Rajasthan v. Shanti, (2009) 12 SCC 400 (9) Uttar Pradesh State Road Transport Corporation v. Bhagyawati, (2009) 12 SCC 401 (10) State of Rajasthan v. Babu Lal, (2009) 14 SCC 215 (11) V. Ramaswamy v. Ramachandran and another, (2009) 14 SCC 216 (12) Kuldeep Singh v. State of Punjab, (2010) 10 SCC 219 (13) Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 (14) Ismailkhan Aiyubkhan Pathan v. State, (2000) 10 SCC 257 (15) A.K. Mehaboob v. Intelligence Officer, Narcotics Control Bureau, (2001) 10 SCC 203 (16) Radhey Sham v. State of Haryana, (2001) 10 SCC 206 9. As against the contentions raised by the learned advocate for the appellants, the learned APP has submitted that the learned Special Judge designated under the NDPS Act, Surat has properly dealt with the evidence on record and passed order of conviction. The learned APP has invited attention of the Court to the documentary evidence submitted by the prosecution as well as oral evidence led by the prosecution before the Trial Court and more particularly, oral evidence given by the Police Inspector, Shri Pradipkumar Ravishankar Pandya, Exhibit 19. The learned APP has invited attention of the Court to the documentary evidence submitted by the prosecution as well as oral evidence led by the prosecution before the Trial Court and more particularly, oral evidence given by the Police Inspector, Shri Pradipkumar Ravishankar Pandya, Exhibit 19. 9.1 It is submitted that upon receipt of secret information by the said officer, necessary preparation was carried out by the raiding party and raid was carried out in accordance with the provisions of the NDPS Act. It is submitted that Police Inspector, Shri Pandya has categorically stated in his deposition about compliance of mandatory provisions while carrying out procedure of raid. It is submitted that necessary entry was also made in the Station Diary and report as contemplated under sections 42(1) and 42(2) of the NDPS Act also submitted to the higher authorities. It is submitted that concerned Panchas were called and they were apprised abut the process of raid in accordance with law. 9.2 It is also submitted that oral evidence given by the Police Inspector at Exh. 19 clearly indicates that during the raid process accused were also categorically asked as to whether they would like to be searched before any gazetted officer or magistrate. In response thereto the accused persons stated that they have no objection if they are searched by the members of the raiding party. It is also submitted that the required procedure was carried out by the investigating officers and as such there is no lacuna or lapse on the part of the raiding party as well as the investigating agency. 9.3 The learned APP has also invited attention of the Court to the oral evidence given by the Police Sub Inspector at Exh.62 and submitted that the deposition given by the said witness also clearly indicates that upon receipt of secret information necessary entries were made in the Station Diary and thereafter, necessary procedure as laid down under the NDPS Act has been followed. The learned APP has also submitted that both these prosecution witnesses have been cross-examined by the learned advocates appearing on behalf of the accused persons. However, no material contradiction is found and both these witnesses have stuck to their version as regards the evidence and the procedure followed in carrying out raid as well as the entire investigation. The learned APP has also submitted that both these prosecution witnesses have been cross-examined by the learned advocates appearing on behalf of the accused persons. However, no material contradiction is found and both these witnesses have stuck to their version as regards the evidence and the procedure followed in carrying out raid as well as the entire investigation. Thus, the documentary evidence produced by the prosecution also gets corroborated from the oral evidence given by these two important prosecution witnesses and there is no material contradiction. 9.4 It is submitted that the prosecution has examined as many as 12 witnesses as mentioned in para 5 of the judgment given by the Trial Court. Except two Panch witnesses, who have been declared hostile, rest of the prosecution witnesses have supported the case against the accused persons and that is why the learned Judge has rightly passed the order of conviction. 9.5 It is submitted that the order passed by the learned Special Judge is legal, proper, reasonable and it is passed after considering the material on record and therefore, the judgment and order passed by the learned Special Judge is required to be confirmed and the appeals filed by the appellants deserve to be dismissed. 10. Considering the aforesaid rival submissions and on perusal of the judgment and order passed by the learned Special Judge, NDPS, Surat, it appears that the learned Special Judge has taken into account the documentary evidence produced and oral evidence led before him and made threadbare analysis of the said evidence keeping in mind the provisions of the NDPS Act. The learned Judge has formulated the points of determination in para 11 of the judgment. 11. Now, while evaluating evidence on record which is discussed by the learned Special Judge in its judgment, it appears that PW-1 and PW-2, who are the panch witnesses have turned hostile. So far as PW-3, who is the complainant and raiding officer, who has deposed at Exh.19 has clearly stated that he was authorized and competent officer empowered under the Act. For carrying out search, PW-3 was working as Police Inspector in Pandesara Police Station at the relevant time and as per Government Notification, GCH 14 NDS 1087(1) dated 15.06.1985 he was empowered to carry out search and related procedure. For carrying out search, PW-3 was working as Police Inspector in Pandesara Police Station at the relevant time and as per Government Notification, GCH 14 NDS 1087(1) dated 15.06.1985 he was empowered to carry out search and related procedure. PW-3 has categorically stated that he received secret information about illegal sale of ganja in Pandesara, Gujarat Housing Board, L.I.G. 512, Block No.295, Room NO.2681 by Babulal Alias Bullu, son of Upendra Parida and his four other colleagues. Accordingly, he has made entry in the Station Diary and passed on this information to the Deputy Commissioner of Police. The said entry has been exhibited vide Exh.60. The secret information which was passed on to the superior officer vide communication dated 26.12.2004 was also exhibited vide Exh.20. Therefore, it becomes clear that the provisions of sec. 42(1) and 42(2) are complied with. This fact is proved by documentary as well as oral evidence on record and therefore, there is no reason to disbelieve the same. The learned Special Judge has properly appreciated this aspect in his judgment. The oral evidence given by PW-3 also clearly establishes that Head Constable, Panchiyabhai Rajaram was asked to arrange for two panch witnesses and accordingly two panch witnesses, namely, Kamlesh Chaturbhai Patel and Kishorbhai Mahipatra Valdure were arranged and they were introduced to the members of raiding party. The deposition of PW-3 also discloses about the procedure followed before and after drawing preliminary panchnama as well as during the raid proceedings. Most importantly, it reveals from the deposition of PW-3 that all the five appellants were found from the said premises with illegal and conscious possession of contraband goods, ganja. Thus, presence of the appellants has been proved beyond reasonable doubt. The oral evidence of PW-3 also makes it clear that the required procedure under sections 50 to 57 has been satisfactorily followed by the members of the raiding party as well as the investigating agency including FSL officials. The learned Special Judge has also rightly and properly appreciated and observed in the judgment that the said provision is directory in nature and the same has been complied with substantially. However, breach of any of the provision does not vitiate the entire trial or judicial proceedings unless the defence (appellants) prove that it has caused great prejudice to their right. However, breach of any of the provision does not vitiate the entire trial or judicial proceedings unless the defence (appellants) prove that it has caused great prejudice to their right. PW-4-Sagarbhai Fatehlal Jain, who has done the work of weighing ganja, and who has been examined vide Exh.43, clearly indicates and establishes that when he reached there, there were five persons other than the Police officials and he carried out exercise of doing weight of muddamal article. According to this witness, the weight of the muddamal article was 37 Kgs. PW-5, Azad Ramniklal Gandhi is the brother of the owner of the premises of the Housing Board from where the muddamal article was found from the conscious possession of the appellants. This witness who is considered to be star witness has deposed at Exh.44, has categorically stated that he being elderly person of the family, was managing the property of his brother and had let out the premises to one Shri Babubhai Rickshawala. This witness has also stated that after 15 days from the premises given on rent, he received phone call from the Police about the incident occurred in his premises and therefore, he went to the Police Station. The learned Special Judge has rightly and properly appreciated the oral evidence given by this witness in reaching to the conclusion that the premises was let out to accused no.1. This happened before few days of occurrence of the incident and since even one month was not over, he was not having any proof of receipt of rent. In our opinion, the learned Special Judge has not committed any error in believing the say of this witness. PW-6, Dineshbhai Gurjibhai Chaudhary, PSO, who has deposed at Exh.45, has also supported the say of PW-3. This witness has also stated about the procedural part carried out during search and more particularly, seizure of muddamal article. The seal and label affixed on muddamal articles were identified and proved by this witness and the same were exhibited vide Exhibits 66 to 90. PW-7, Rohidas Hilal Patil, who was Crime Writer Head and has deposed vide Exh.47, has categorically stated that he received muddamal article from PSO on 26.12.2004 when he was on duty after putting his signature in the slip (Muddamal Pavti) and thereafter necessary entry was made in the muddamal register and it was kept properly and safely. PW-7, Rohidas Hilal Patil, who was Crime Writer Head and has deposed vide Exh.47, has categorically stated that he received muddamal article from PSO on 26.12.2004 when he was on duty after putting his signature in the slip (Muddamal Pavti) and thereafter necessary entry was made in the muddamal register and it was kept properly and safely. PW-7- Harishbhai Ramanlal Solanki, who has worked as carrier, has been examined vide Exhibit 50 and he has supported the prosecution case. PW-8, Bhikhabhai Mangabhai Badarshahi; and PW-9, Shashikant Maganbhai Darji, Scientific Officer, Forensic Science Laboratory, Gujarat State, Gandhinagar, were examined vide exhibits 51 and 53. From the deposition of these witnesses it is proved that necessary procedure was followed and after scientific analysis it was found that the seized muddamal article was ganja. FSL Report has been proved by these witnesses and the same was exhibited vide Exh.58. Likewise, PW-10, Rajesh Rameshchandra Mehta has deposed vide Exh.60 and has proved the botanical report, which was exhibited vide exh.61. PW-11, Investigating Officer, Abdul Rahim Shaikh has deposed vide exh.62, and has stated about the entire investigation carried out by him and about submission of charge sheet. We have carefully considered the oral as well as documentary evidence evaluated by the learned Special Judge and we are of the opinion that the learned Special Judge has rightly and properly appreciated the evidence on record. The learned Special Judge has not committed any error while making threadbare analysis of the evidence on record. The learned Special Judge has rightly come to the conclusion that the prosecution has proved charges against the appellants beyond reasonable doubt. 12. As mentioned above the learned Special Judge, after having discussed the oral as well as documentary evidence on record, has given his findings in para 34 of the judgment, after having threadbare analysis of the documentary and oral evidence on record. The learned Judge has rightly come to the conclusion on the basis of the evidence on record that it has been proved that the premises was let out to accused no.1 by Azad R. Gandhi. The learned Judge has also rightly come to the conclusion that the provisions contained in sections 42(1), 42(2) and 50 of the NDPS Act are complied with and there is no breach or violation of these mandatory provisions. The learned Judge has also rightly come to the conclusion that the provisions contained in sections 42(1), 42(2) and 50 of the NDPS Act are complied with and there is no breach or violation of these mandatory provisions. The learned Judge has also rightly appreciated the evidence on record and came to the conclusion that the provisions of sections 52 to 57 are substantially complied with and the accused persons were not in a position, at any stage, to show that their right to defence has been affected adversely on account of non compliance of any of the provision. The learned Judge has also rightly come to the conclusion that on the basis of the evidence on record that on the date of the incident during the raid all the accused persons were present on the spot and they were arrested from the spot itself. The learned Judge has also rightly appreciated the evidence and come to the conclusion that the plea of alibi is not proved by the defence. 13. The learned Special Judge has rightly and properly observed in his judgment that the plea of alibi taken by the appellants in the statement recorded under section 313 of the Code of Criminal Procedure has not been proved by cogent and reliable evidence by them and therefore, it can neither be accepted nor believed. The learned Judge has also rightly come to the conclusion that the cash amount and mobile phone which were recovered from the accused persons clearly indicate the presence of the accused persons at the place of the offence. 14. The defence is not able to dislodge this fact even during the course of the cross-examination of witnesses. The learned Judge has rightly come to the conclusion that though the accused persons were not related to each other, they had assembled at a particular place, viz. the place of offence collectively and that itself shows their common intent and helping each other in commission of offence. Meaning thereby, they were abetters in the crime. The learned Judge has rightly observed while giving finding that the huge quantum of ganja, viz., 37.500 Kgs, without valid permit, found in a drum from the premises of accused no.1 and weighing machines were also found from the said place. Meaning thereby, they were abetters in the crime. The learned Judge has rightly observed while giving finding that the huge quantum of ganja, viz., 37.500 Kgs, without valid permit, found in a drum from the premises of accused no.1 and weighing machines were also found from the said place. The learned Judge has also rightly and properly appreciated the evidence on record and came to the conclusion that there is no contravention of the provisions of sections 42 and 50 of the NDPS Act and all necessary and requisite procedure and formalities have been undertaken and completed by the raiding party, members as well as the investigating officers. The learned Judge has also rightly come to the conclusion that the accused persons were found with the muddamal article and conscious possession has been established beyond reasonable doubt. The learned Judge has also rightly come to the conclusion that the sealing and packing procedure has been followed in the instant case as per the guidelines and the principles laid down by the High Court of Gujarat in its various decisions. The learned Judge, on the basis of the evidence on record, has rightly come to the conclusion that there is no manipulation to the seals which were applied when the muddamal articles were sent to the Forensic Science Laboratory for scientific analysis. The learned Judge has rightly and properly appreciated the evidence on record and appreciated the opinion rendered by the expert after their scientific analysis in establishing that the seized articles were ganja. While discussing issue no.2 in para 36 of the judgment, the learned Judge has rightly and properly dealt with the issue and has come to the conclusion that the prohibited muddamal was 37.500 Kgs without valid licence or permit and the same was more than the commercial small quantity and having regard to the facts and circumstances of the case and after having threadbare analysis of the entire evidence on record the learned Judge has passed order of conviction and awarded the sentence. We are of the opinion that the learned Judge has not committed any error while coming to the conclusion in its judgment. The judgment and order passed by the learned Special Judge is in accordance with law, just, proper and is passed after considering all the necessary material on record. 15. We have gone through the above cited judgments. We are of the opinion that the learned Judge has not committed any error while coming to the conclusion in its judgment. The judgment and order passed by the learned Special Judge is in accordance with law, just, proper and is passed after considering all the necessary material on record. 15. We have gone through the above cited judgments. The above judgments have no relevance in view of the facts and circumstances of the present case as discussed hereinabove, and more particularly in view of the findings given on the basis of evidence on record. In the instant case mandatory provisions of the NDPS Act are complied with by the raiding party and there is no breach of the said provisions. Therefore, the facts of the case cited before this Court are different from the facts of the present case. Therefore, the said judgments do not help the appellants. 16. We have given our thoughtful consideration to the submissions made by the learned advocate for the appellants. We have also given our thoughtful consideration to the judgments relied upon by the learned advocates for the appellants, but as discussed hereinabove on perusal of the judgments and the findings given by the learned Special Judge, it appears that the prosecution has established its case beyond reasonable doubt that the appellants were in conscious illegal possession of the contraband goods during the search carried out by the raiding party. It appears that the procedure as laid down under NDPS Act has been followed by the raiding party. The learned Special Judge has rightly appreciated the evidence on record while passing the order of conviction. It also appears that a further statement under section 313 of the Code of Criminal Procedure was also recorded, but no contradictory version is found and the defence is unable to dislodge the fact that the appellants were found with conscious illegal possession of the contraband goods at the time of search carried out by the raiding party upon receipt of secret information. Thus, it appears that there is no substance in the appeal and the same deserves to be dismissed. 17. We do not find any ground to interfere with the impugned judgment or the ultimate conclusion arrived at by the Trial Court. We also do not find any infirmity with the reasoning assigned by the learned Judge. Thus, it appears that there is no substance in the appeal and the same deserves to be dismissed. 17. We do not find any ground to interfere with the impugned judgment or the ultimate conclusion arrived at by the Trial Court. We also do not find any infirmity with the reasoning assigned by the learned Judge. We, therefore, do not find any merits in the present Criminal Appeals. In the result, the judgment and order dated 30th June 2007 rendered by the learned Special Judge under NDPS Act in Special NDPS Case No.2 of 2005 is upheld and the present Criminal Appeals are dismissed. Appeals dismissed.