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2011 DIGILAW 879 (GUJ)

STATE OF GUJARAT v. HOMABHAI CHAMARIYABHAI GAMIT

2011-12-29

D.H.WAGHELA, N.V.ANJARIA

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) Criminal Appeal No.981 of 2011 is filed by the State challenging judgment and order dated 30.03.2011 in NDPS Case No.16 of 2004 passed by learned Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, whereby all three respondents-accused are acquitted of charge of offences under section 8(c) and section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985. 1.1 Misc. Criminal Application No.11351 of 2011 is filed for condoning delay of 22 days in preferring Criminal Appeal, whereas Misc. Criminal Application No.11350 of 2011 prays for leave to appeal. 2. Having regard to the limited controversy and learned Assistant Public Prosecutor having taken us through evidence, learned Assistant Public Prosecutor was heard in extenso. 3. As per the prosecution case, information was received on 09.11.2003 by complainant, the Prohibition Inspector Bardoli, District Surat, from Deputy Commissioner and Police Superintendent, Surat, that at village Ota, certain persons had kept contraband goods in agricultural fields of their occupation and possession. After following necessary procedure of recording Panchnama etc., a raid was arranged with staff on duty. The raiding party thereupon reached the agricultural fields where gunny bags were found from inside the standing crop of maize. Noticing that the gunny bags contained contraband, the Talati-cum-Mantri of the village was called to know about ownership of agricultural fields whereat the contraband goods were located, who on verifying from revenue records, stated that field bearing Block No.137 was of ownership of respondent No.1 Homabhai Chamariabhai Gamit, field bearing Block No.110 was owned by respondent No.2 Jamubhai Chindiyabhai Gamit, whereas field bearing Block No.107 was of ownership of respondent No.3 Posaliyabhai Bariyabhai Gamit. Then FSL Officer was called who prima facie opined that the substance was Ganja. 3.1 It is the prosecution case that from agriculture field bearing Block No.137, two gunny bags were recovered which contained total 43 Kgs. of Ganja. From field bearing Block No.110, two gunny bags wherefrom Ganja seeds and Ganja weighing 69 Kgs. and 16 Kgs. respectively were recovered. Similarly, from field bearing Block No.107, two gunny bags containing 41 Kgs. Ganja was recovered. The samples in requisite quantity were taken, Panchnama (exh.28) was recorded and later, as per the report Exh. 52 of FSL Officer, Surat Office, (PW-9 Exh.50), the goods recovered were confirmed to be Ganja. 4. and 16 Kgs. respectively were recovered. Similarly, from field bearing Block No.107, two gunny bags containing 41 Kgs. Ganja was recovered. The samples in requisite quantity were taken, Panchnama (exh.28) was recorded and later, as per the report Exh. 52 of FSL Officer, Surat Office, (PW-9 Exh.50), the goods recovered were confirmed to be Ganja. 4. In order to prove commission of offence the prosecution has examined Dasrathbhai Ranchodbhai (Ex.53) who was Talati-cum-Mantri at the relevant time and who produced revenue record to show ownership of the agricultural fields where the contraband was found. The F.S.L. Officer Ravindrabhai Choudhury (Exh.50) who was on duty as Scientific Officer in F.S.L. Office, Surat in his deposition only stated that he had opined that contraband was Ganja. The prosecution examined Rashid Ahmed (P.W.-11 – Exh.56) who brought weighing machine. However, he stated that he was not aware as to who did the weighment. He was declared hostile. 4.1 Panch witness (PW-12-Exh.27)) Prabhakar Maratha stated that before six months he had gone to police station and signed the panchnama on being so asked. He denied that he had gone with panchas to any place and was declared hostile. Similarly Pradeep Gadwe (PW-3), also a panch witness, too did not support panchnama and was declared hostile. Yet another panch witness Bachubhai Pathan (PW-4-exh.30) stated that he never read panchnama nor it was read over before him, and thus this witness was also declared hostile. P.W.-12 was Aniruth More, P.S.O. at Songadh Division, who only took the complaint from Prohibition Inspector for registering it and received the contraband goods. 4.2. Jagdishchandra Desai (P.W.-13-exh.60) who was in charge of investigation of offence and took statements of different persons admitted in cross-examination that contraband Ganja was recovered from open field and further admitted that no accused was caught with possession of ganja. He also admitted that he had no information as to who brought the contraband in the open fields. 5. Thus, evidence of only Jagdishchandra (PW-13) became relevant, who in terms admitted that contraband goods were found from open field and neither the source was known nor any of the accused was caught with possession thereof. He also admitted that he had no information as to who brought the contraband in the open fields. 5. Thus, evidence of only Jagdishchandra (PW-13) became relevant, who in terms admitted that contraband goods were found from open field and neither the source was known nor any of the accused was caught with possession thereof. When it emerges on record from evidence that no one amongst the accused was even present in the agricultural fields whereat the contraband goods ganja was found, much less any of them being in conscious possession, and there being no other evidence on record to link them with alleged offence, their role in respect of the offence could not be proved. 5.1 For the purpose of making out offence under Section 8(c) and Section 20(b) of the N.D.P.S. Act, conscious possession is an essential ingredient. Possession would imply physical control and conscious possession implies possession with mental element. In State of Punjab v. Balkar Singh ( AIR 2004 SC 4606 ) the accused were found sitting on the bags of contraband poppy husk and they could not satisfactorily explain their presence at the place. The Hon'ble Supreme Court, however, held that in absence of evidence as to how the bags of poppy husk were brought to the place and without evidence as to the ownership, mere fact of failure by accused to explain about their presence would not be sufficient to hold them guilty and the acquittal was proper. The Apex Court observed in paragraph 3 as under: “The recovery was effected from a field in village Lohgarh. The respondents belonged to different villages. The respondent-Balkar Singh is a resident of village Bira Bedi in District Hisar while respondent-Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of respondents at the place from where the bags of poppy husk was recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The presence of respondents at the place from where the bags of poppy husk was recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles.” 6. The evidence on record in the present case falls short even further than in case of State of Punjab (supra). The kind and nature of evidence fails to establish any connecting link between the offence alleged and the respondents to show that the contraband goods belonged to them or that they were in possession, much less in conscious possession. 7. In view of the above discussion, the trial court has not committed any error in appreciation of evidence, nor recorded any finding which can be said to be perverse or unreasonable. The consequential acquittal recorded by the trial court is imminently proper. Therefore, the present appeal is not required to be entertained. 8. Since the appeal is not to be admitted, condoning delay ex-parte would not cause any prejudice to the other respondent. Hence delay of 22 days is condoned ex-parte by allowing Miscellaneous Criminal Application No.11351 of 2011, Miscellaneous Criminal Application No.11350 of 2011 for leave to appeal is dismissed. The appeal also stands summarily dismissed for the reasons recorded above.