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Gujarat High Court · body

2016 DIGILAW 1251 (GUJ)

State of Gujarat v. Gyansingh Kalyansingh Jhat

2016-07-05

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal preferred by the State of Gujarat, under Section 378(3) of the Criminal Procedure Code, 1973, against the judgment and order of acquittal dated 24.2.2005, recorded by the learned Special Judge (NDPS) 4th Fast Track Court, Panchmahal, At Godhra, in Special Case (NDPS) No. 6 of 1985. 2. It is the case of the prosecution that on 19.08.2002, Police Inspector-V.V. Rathod and the staff were on patrolling. They reached Lalbaug bus stand near Ambika Cross Road, at this time, the opponent-accused came down from bus stand with a polythene bag. Sensing the police patrol, he went back to the bus stand. The said Police Inspector ordered the complainant and other police constable to bring the opponent-accused. He was brought and was examined. On examining, it was found that he was having 900 gm. of ganja worth Rs. 4500/-. The muddamal article was sealed and sent to the laboratory. Accordingly, a complaint for the offences punishable under Sections 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 was filed. 3. In pursuance of the aforesaid complaint, the Police recorded the statements of the witnesses and after completion of investigation, filed charge-sheet which came to be committed to the learned trial Court. 3.1 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and after hearing the arguments on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and has wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed as such. 6. Mr. L.B. Dabhi, learned APP appearing for the State has reiterated and urged the grounds mentioned in the memo of appeal. 6. Mr. L.B. Dabhi, learned APP appearing for the State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper book and evidence on record and argued that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned trial Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned trial Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offences under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985, which requires to be reversed as such and the accused is required to be convicted. Mr. Dabhi, learned APP further argued that ample evidences are available on record wherein the accused was caught red handed with large quantity of ganja weighing 900 gm. He further submitted that almost all the persons who had carried out the search supported the case of the prosecution, still, however, the learned trial Court has wrongly recorded finding that the prosecution failed to prove seizure as well as sample for analysis which was sent to the FSL. He has further submitted that the appreciation of evidence made by the learned trial Court suffers from the vice presumption and surmises which is required to be reversed as such. Mr. Dabhi, learned APP has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be reversed into conviction as such. 7. On the other hand, Mr. Darshit Brahmbhatt, learned advocate appearing for Mr. Mr. Dabhi, learned APP has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be reversed into conviction as such. 7. On the other hand, Mr. Darshit Brahmbhatt, learned advocate appearing for Mr. D.F. Amin, learned advocate for the respondent has argued that the learned trial Court has elaborately dealt with the evidence on record and rightly recorded the finding and acquitted the accused from the charges levelled against him. He further argued that though the personal search was carried out by the raiding party, but they failed to comply with the mandatory provisions of Section 50 of NDPS, Act. He has further argued that the contraband article (ganja) was seized from the respondent at Lalbaugh Police Station. In that view of the matter the contraband article (ganja) sent for FSL analysis becomes doubtful and the learned Tribunal has rightly given benefit doubt, which calls for no interference. He further argued that the prosecution has not produced any iota of evidence to link the accused with the crime. Consequently therefore, the accused was wrongly implicated. 8. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant-State and Mr. Darshit Brahmbhatt, learned advocate appearing for Mr. D.F. Amin, learned advocate for the respondent. 9. Having heard learned counsel for the respective parties and having gone through the impugned judgment as well as record and proceedings of learned trial Court, on going through the entire evidence available on record it appears that on 19th August, 2002, while the complainant as well as other Police Officers were on patrolling at Lalbaug Bus Station, Godhra, at that time, the present respondent was found to be in suspicious condition whereupon personal search was carried out by the raiding party and they recovered about 900 gm. ganja, valued in the sum of Rs. 4,500/- and thereby the respondent committed offence punishable under Section 20(b) of the NDPS Act. 10. In order to bring home the guilt against the accused persons, the prosecution examined about 12 witnesses and produced several evidences. Out of 12 witnesses, none of the witness have supported the case of the prosecution. ganja, valued in the sum of Rs. 4,500/- and thereby the respondent committed offence punishable under Section 20(b) of the NDPS Act. 10. In order to bring home the guilt against the accused persons, the prosecution examined about 12 witnesses and produced several evidences. Out of 12 witnesses, none of the witness have supported the case of the prosecution. In that view of the matter, the entire case rested upon oral evidence of police officials who were the members of the raiding party. PW-1-Rajendrasinh has deposed that on 19.8.2002, he was serving as a police constable in the Town Police Station. While, he was on patrolling alongwith Police Inspector-Vajesinh Rathod and Constable-Mahendrasinh Solanki, within the vicinity of Lalbaug Bus Station, Godhra, at that time they found one person in suspicious condition and after making personal search, they recovered 900 gm. ganja from the possession of the respondent and thereafter they carried out panchnama in the presence of panchas. After weighing the ganja, the contraband article (ganja) was packed and sealed. PW-7-Dharmendra Mulchandani has deposed that once the police arrived at his place for weighing one bag, no one accompanied the police and after weighing the bag, the Police returned from his place. PW-11 Raijibhai has deposed that he was serving as a police constable in Godhra Town Police Station and investigation was handed over to him and he recorded the statement etc. In his cross-examination, he has admitted that he has sent the muddamal to Vadodara for verification and he did not know the contents of the material in the bag. Taking into consideration the evidence of the aforesaid witnesses as well as other Police Officers, the learned trial Court has not believed the case of the prosecution and given the benefit of doubt. 11. On overall analysis of the evidence on record, once the raid was carried out at the place of incident and the person was found to be in suspicious condition and raiding party was consisting of an officer in the rank of Police Inspector in that view of the matter, the investigation could not have been handed over to Police Sub Inspector who is below the rank of the Police Inspector who was member of raiding party. Once the raid was carried out consisting of Police Inspector who had seized contraband article (ganja), in that case if the investigation is handed over to his subordinate, then naturally the subordinate officer would try to carry out the investigation in order to prove the case of the raiding party and the entire investigation gets tainted. Not only that, but as per the say of the complainant and from the evidence emerging out from the panchnama of the scene of offence, the entire sealing procedure alleged to have been carried out at the place where the respondent-accused had been apprehended and searched in person, where as the investigating officer has admitted that the muddamal was sealed in the police station. In that view of the matter, the entire seizure and sealing procedure becomes doubtful. So far as the compliance of Section 50 of the NDPS Act is concerned, the learned trial Court has recorded that the raiding party was duty bound to carry out the search in the presence of Gazetted Officer or Magistrate but it has not been done so far while carrying out the personal search of the present respondent. Consequently therefore, the search is also tainted for non-compliance of mandatory requirement of Section 50 of the NDPS, Act. 12. For the reasons recorded above, the prosecution miserably failed to prove that during the course of raid, the contraband article was seized and sample was drawn and the sealing procedure was carried out and sent to the FSL, Vadodara and thereafter to FSL, Ahmedabad. In that view of the matter, the learned trial Court has rightly given the benefit of doubt, which calls for no interference. 13. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 14. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 14. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 15. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.