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2016 DIGILAW 1573 (GUJ)

State of Gujarat v. Bhilubhai Hatiyabhai Vlavi

2016-08-01

ANANT S.DAVE, B.N.KARIA

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JUDGMENT : Anant S. Dave, J. 1. This Criminal Appeal is preferred by the State of Gujarat under Section 378[1](3) of the Code of Criminal Procedure, 1973 seeking to challenge the judgment and order dated 16th September 2005 passed by the learned Addl. Sessions Judge, Navsari [Camp at Ahwa] in Special NDPS Case No. 1 of 2005, whereby, the respondent herein has been acquitted of the charges framed against him for the offence punishable under Section 20 [a] of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Brief facts which led to filing of this Appeal are as follow:- On 17th September 2004, the complainant-Yashwantrao Shyamrao Navre, a Circle Inspector, upon receipt of information in respect of cultivation of crop of Bhang/Ganja in a field of respondent, situated in village Kakshala, made an entry to that effect in the Station Diary at about 12:45 hours and had gone to the said village alongwith PSI Shri J.R. Patel and other police officials; two panchas and Scientific Officer, wherein on a piece of land admeasuring 50 ft. x 40 ft, cultivation of Bhang/Ganja was found. Thereafter, upon the leaves of plant having been examined by the Scientific Officer, the same were found to be Bhang/Ganja. This contraband, according to the complainant, weighing 81 kilograms was seized in presence of panchas and a complaint in this respect came to be registered as II-C.R. No. 61 of 2004 against the respondent herein for the offence punishable under Section 20 [a] of the Narcotic Drugs & Psychotropic Substances Act. 3. After investigation was over, chargesheet was laid before the learned JMFC, Vansda-Ahwa, who committed the case to the Court of learned Sessions Judge, Camp-Ahwa under Section 209 of the Code of Criminal Procedure for its trial, where it was numbered as Special NDPS Case No. 1 of 2005. 4. At trial, the accused pleaded not guilty and claimed to be tried. The learned Addl. Sessions Judge, Fast Track Court, Navsari - Camp at Aahwa was pleased to acquit the respondent herein of the charges for the offence punishable under Section 20 [a] of the Narcotic Drugs & Psychotropic Substances Act, 1985. 5. Aggrieved and dissatisfied by the said judgment and order of acquittal dated 16th September 2005 passed in Special NDPS Case No. 1 of 2005, the State of Gujarat has preferred this Criminal Appeal. 6. Heard learned advocates appearing for the respective sides. 5. Aggrieved and dissatisfied by the said judgment and order of acquittal dated 16th September 2005 passed in Special NDPS Case No. 1 of 2005, the State of Gujarat has preferred this Criminal Appeal. 6. Heard learned advocates appearing for the respective sides. 7. Learned APP, in the backdrop of the acquittal order passed by the learned trial Judge, submitted that though the prosecution has successfully proved its case beyond reasonable doubt by bringing evidence on the record viz., of the complainant-Yashwantrao Shyamrao Navre [PW-3: Exh. 14] who supported the case of prosecution about cultivation of crop of Bhang/Ganja on the land belonging to the respondent-accused admeasuring 50 ft. x 40 ft. and that all the leaves of the plants were collected weighing about 81 kilograms of the value of Rs. 40,500/- and another prosecution witness Manshubhai Radkubhai alongwith panch witnesses also supported the case about seizure of contraband and in the report filed by Forensic Science Laboratory, the contraband was found to be narcotic substance, and therefore, the learned trial Judge has erred in appreciating the evidence, and accordingly, the judgment and order of acquittal of the respondent deserves to be quashed by allowing the appeal. Inter alia, it is also submitted that the learned trial Judge ought to have believed the evidence of panchnama at Exh. 12 on the ground that panch witnesses have confirmed atleast of signing such panchnama and further, the Talati-cum-Mantri who had drawn scene of offence panchnama whereby the field of the respondent, survey No. 159, was covered by other adjoining survey numbers would go to show that the place from where contraband was seized belong to agricultural field owned and occupied by the respondent. 8. Accordingly, it is submitted that the Appeal deserves to be allowed and the impugned judgment and order of acquittal deserves to be quashed. 9. Per contra, learned advocate Mr. Sunil C. Patel appearing for the respondent-original accused, however, would contain that the very basis namely ownership, occupation and possession of the agricultural land from where the contraband was found itself is not proved and the case of prosecution, based on such non existing facts, rightly has not been believed by the learned trial Judge. He added that the field was open, having adjoining lands belonging to Forest Department for which no fencing was made and possibility of cannabis plant growing in such area is also not ruled out. He added that the field was open, having adjoining lands belonging to Forest Department for which no fencing was made and possibility of cannabis plant growing in such area is also not ruled out. According to Shri Patel, failure on the part of the prosecution to bring an independent panch from a village of more than 500 to 600 residents, and further the Scientific Officer-Shri Patel, whose statement was not recorded much less examined, creates doubt about the case of prosecution. PW-2 Mansubhai Radhkubhai, admittedly a Clerk in the office of DSP and used to be a witness in many such cases of drawing panchnama, in his testimony do not specifically support the case of prosecution. Besides, Yashvantrao Shyamrao Navre [PW-3: Exh. 14] admits to have not taken care during the course of raiding i.e., entry, search and seizure of agricultural field and muddamal about verification, ownership, possession and even cultivation carried out by the respondent-accused. When no evidence is brought on the record in this regard, it is submitted that the acquittal ordered by the trial Court deserves to be confirmed by dismissing the Appeal. 10. We have heard learned APP., Shri Rutvij Oza for the appellant-State and learned advocate Mr. Sunil C. Patel appearing for the respondent-original accused and also perused the record of the case; including the impugned judgment. Having regard to the facts and circumstances of the case and reasonings assigned, on which findings and conclusion drawn by the learned trial Judge of innocence of the respondent, we are in agreement with such findings on the ground that the learned trial Judge has confined himself to well established procedure of appreciating evidence and parameters laid down by the Apex Court and this Court in this regard. The trial Court has found that no verification was made by the concerned Police personnels of raiding party to verify and later on to establish ownership, possession and cultivation in the agricultural field, whether belonging to the respondent-accused or not. The above fact is admitted by him in his testimonies. Another person viz., Shri Patel, a Scientific Officer of FSL alleged to have examined cannabis plants seized and report was sought for, no statement was recorded and later on not examined during the course of trial. Likewise, almost all panchas of various panchnamas have turned hostile to which further reference is not necessary. Another person viz., Shri Patel, a Scientific Officer of FSL alleged to have examined cannabis plants seized and report was sought for, no statement was recorded and later on not examined during the course of trial. Likewise, almost all panchas of various panchnamas have turned hostile to which further reference is not necessary. However, the agricultural filed of respondent, though situated in a village having residency of 500 to 600 persons, no statement of any resident is taken. The only fact which comes on the record is the report of FSL about nature of contraband seized was found to be cannabis plant. But, the above fact alone, in absence of any material evidence on the record, by itself cannot connect the accused with the crime, and accordingly, acquittal ordered by the learned trial Judge based on such evidence cannot be said to be contrary to law, warranting any interference in exercise of power under Section 378 read with Section 386 of the Code of Criminal Procedure. Hence, the present Criminal Appeal fails and the same is dismissed. Bail bond stands cancelled.