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2013 DIGILAW 60 (GUJ)

State of Gujarat v. Jaysukhbhai Ramjibhai Chavda

2013-02-04

HARSHA DEVANI

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JUDGMENT HARSHA DEVANI, J. This appeal is directed against the judgment and order of acquittal dated 8th June, 2012 passed by the learned Special Judge, Amreli in Special Case No.61 of 2010, whereby he has acquitted the accused of the offences under section 20(a) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act). 2. The prosecution case is that the first informant P. S. I. Mr. A. P. Patel, on 23.8.2010, received telephonic instructions at the Dhari Police Station from the Superintendent of Police, Amreli that one Jaysukhbhai Ramjibhai Chavda, who was carrying on his business in a fruit-cart at Nagrik Bank Chowk of Babra village, is illegally selling ganja (cannabis) and that they should conduct a raid. Therefore, he along with Head Constable Bharatgar Lalgar, Harshadbhai Jani and others had set out in a private vehicle to Babra and had issued a yadi to Mr. N. K. Adhera, Mamlatdar, Babra to remain present. They had called two panchas and drawn a preliminary panchnama and accordingly, made an entry in the Babra Station Diary vide Entry No.20/10. Thereafter, the police staff, Mamlatdar and the panchas came to the spot at Nagrik Bank Chowk. Upon asking the fruit-cart owner about his name, he had stated that his name was Jaysukhbhai Ramjibhai. Thereafter, they had introduced themselves and given him in writing that he was required to be searched in person. Upon searching him, from the pocket of his pajama, a plastic bag bearing green and dry ganja was found. A dealer was called for weighing the same with weighing scales and it was found to weigh 100 grams, out of which 50 grams ganja was taken in a plastic bag and the same was kept in a cloth bag and sealed and a slip bearing the signatures of the panchas was placed thereon. Two bags containing 50 grams ganja each were prepared in the presence of panchas and seized. The accused was arrested and the first information report came to be lodged with the Babra Police Station. Pursuant thereto, charge came to be framed against the accused for the offence punishable under section 20(a) of the N. D. P. S. Act. Two bags containing 50 grams ganja each were prepared in the presence of panchas and seized. The accused was arrested and the first information report came to be lodged with the Babra Police Station. Pursuant thereto, charge came to be framed against the accused for the offence punishable under section 20(a) of the N. D. P. S. Act. It appears that during the course of investigation, the name of the accused No.2 “ Dharmendrasinh alias Dhambhai Bahadursinh Gohil came to be revealed from whom the accused No.1 is stated to have purchased the contraband goods. 3. During the course of trial, the prosecution examined in all eight witnesses and produced certain documentary evidences on record. The learned Special Judge, after appreciating the evidence on record, found that the prosecution had failed to establish the charges levelled against the accused and acquitted them. 4. Mr. H. K. Patel, learned Additional Public Prosecutor assailed the impugned judgment and order by submitting that the prosecution had duly established the charges levelled against the accused and as such, the learned Judge was not justified in holding that the prosecution had not proved its case beyond reasonable doubt. 5. A perusal of the record of the case reveals the following glaring facts. Though it is stated that an information was received to the effect that the accused No.1 was selling ganja at a particular place, neither are the facts as regards from whom the information was received brought on record, nor has such person been examined. In this case, the Raiding Officer has stated that the S. P., Amreli had instructed him to conduct a raid, however, nothing has been brought on record as to how and in what manner the information was received by the S. P., Amreli. There is no material on record to reveal that upon receipt of such information, the Superior Officer had been informed about the same. 6. It may be significant to note that though the raiding party was acting on the basis of prior information, before searching the accused, he had not been informed about his right to be examined in the presence of a Gazetted Officer as envisaged under section 50 of the N. D. P. S. Act. 6. It may be significant to note that though the raiding party was acting on the basis of prior information, before searching the accused, he had not been informed about his right to be examined in the presence of a Gazetted Officer as envisaged under section 50 of the N. D. P. S. Act. It is true that witness Narsinhbhai Jivanbhai Adhera (Exhibit-20) has deposed to the effect that in the presence of the P. S. I., he had asked the accused whether he wanted to be searched in his presence or in the presence of a Magistrate. However, by merely asking the accused as to whether he wanted to be searched in the presence of a Magistrate, it cannot be stated that the provisions of section 50 of the Act have been duly complied with. Moreover, the said fact is stated by only one of the witnesses, whereas none of the other witnesses have made any mention of the accused having been asked as to whether he wanted to be searched in the presence of a Magistrate. Moreover, it has come on record that while seizing the contraband goods, no seizure memo had been prepared, nor has a copy of such seizure memo been provided to the accused. Thus, one of the basic requirements of drawing of seizure memo evidencing the seizure of the contraband goods carried out by the raiding party has not been satisfied in the facts of the present case. Besides, the panchnama of the proceedings reveals that the seal which was affixed on the seized articles was the seal of the P. S. I., Babra, whereas the report of the Mamlatdar, Exhibit-49 reveals that the seal of P. S. I. - Babra, Amreli D.I.S.T.T. was affixed. Thus, the evidence on record reveals two different types of seals having been affixed on the seized articles, whereas no explanation has been brought on record by the prosecution explaining the same. Thus, the specimens of the seals are also different. It may also be noted that the person who has delivered the muddamal sample to the Forensic Science Laboratory, has also not been examined by the prosecution. Last but not least, the prosecution case is that the ganja which was recovered from the accused was contained in a plastic bag. Thus, the specimens of the seals are also different. It may also be noted that the person who has delivered the muddamal sample to the Forensic Science Laboratory, has also not been examined by the prosecution. Last but not least, the prosecution case is that the ganja which was recovered from the accused was contained in a plastic bag. However, after taking a sample of ganja from the plastic bag, the same has been emptied and thrown away, which is evident from the deposition of Narsinhbhai Jivanbhai Adhera (Exhibit-20). In this regard, no plausible explanation had come forth from the prosecution as to why bag from which the ganja was taken, had been thrown away. Moreover, different versions have come on record from the depositions of the witnesses as regards the manner as well as the bags in which the seized article had been sealed. 7. Various other discrepancies in the prosecution case have also been brought on record through the cross-examination of the witnesses. 8. In the light of the aforesaid facts, it is apparent that apart from the fact that various mandatory as well as directory statutory provisions have not been followed by the raiding party before and after carrying out the raid, even the bag containing ganja which was seized from the accused has been thrown away. 9. It may also be pertinent to note that the charge against the accused is for the offence punishable under S. 20(a) of the N.D.P.S. Act which is in respect of cultivation of cannabis plants. From the evidence which has come on record, it is more than evident that there is no material whatsoever to establish that the accused persons had cultivated any cannabis plants. In the entire evidence on record, no evidence worth the name has been brought out against the accused No.2 Dharmendrasinh alias Dhambhai Bahadursinh Gohil, who is alleged to have supplied the ganja to the accused No.1. 10. In the light of the above discussion, it is apparent that the prosecution has miserably failed to establish the charges levelled against the accused. Under the circumstances, no infirmity can be found in the impugned judgment and order passed by the learned Special Judge warranting intervention by this Court. 11. In the aforesaid premises, the appeal fails and is, accordingly, dismissed. Appeal dismissed.