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2016 DIGILAW 2059 (GUJ)

State of Gujarat v. Rasidkhan Sharifkhan Pathan

2016-09-22

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. Karia, J. 1. By way of this appeal, the appellant-State has challenged the judgment and order of acquittal dated 30.03.2005 passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad in Sessions Case No. 187 of 2003. 2. The facts in brief are as under:- 2.1 It is the case of the prosecution that on 29.05.2003 an information was received by the Police Inspector, Anti Terrorist Squad Unit No.1, in respect of possession of narcotic drugs by a person named Rasidkhan Sharifkhan Pathan and a raid was organized, as he was to pass through on his motor cycle with brown sugar. He was intercepted, while going on his motor bike bearing registration no. GJ208177 near Naroda ‘C’ colony and 260 gms brown sugar was seized from him, for which he had no license. He is alleged to have conspired with the accused No.2 to transact in the said narcotic substance and is allegedly to have purchased from the absconding accused Mahboob Lala, resident of the State of Rajasthan. 2.2 After the complaint was lodged, investigation was carried out and chargesheet has been laid down against both the accused and on committal of the case under Section 209 of the Code of Criminal Procedure, the accused have been charged for an offence punishable under Section 21(C) and 8(C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act. The accused No. 1 was also charged for breach of provisions of Section 3 and 181 of the Motor Vehicle Act. Both the accused pleaded not guilty and claimed to be tried. 3. To prove the case against the accused, the prosecution had produced and relied upon eight oral as well as 22 documentary evidences. 4. At the end of trial, the Court below recorded further statement of accused under Section 313 of Cr.P.C., and thereafter, passed the impugned judgment and order, which has led to filing of present appeal. 5. Heard Mr. Rutvij Oza, learned Additional Public Prosecutor for the appellant-State and Mr. Aziz An Alvi, learned advocate for the respondents. 6. It is submitted by Mr. 5. Heard Mr. Rutvij Oza, learned Additional Public Prosecutor for the appellant-State and Mr. Aziz An Alvi, learned advocate for the respondents. 6. It is submitted by Mr. Oza, learned APP for the appellant that the order passed by the learned trial Judge dated 30.03.2005 acquitting the accused/respondents of the offences punishable under Sections 21(C) and 8(C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short ”the act”) on accused No.1 and acquitting accused No.2 by giving benefit of doubt for the offence punishable under Section 9 of the Act in Sessions Case No. 187 of 2003 is completely illegal, perverse and against the oral as well as documentary evidence produced by the prosecution on record. Mr. Oza has further submitted that complainant Arvindbhai Fakirbhai Moti (Exh.12) has given concrete evidence supporting the prosecution case. That, findings of the trial Court in respect of not giving opinion of any handwriting expert is a grave mistake and erroneous, because there was no necessity to call for an opinion of handwriting expert as the signature was made in presence of the complainant, and therefore, there was no need for any expert opinion. That, no fresh opportunity was given to the prosecution by learned trial judge and case was decided in favour of the accused. That, trial judge should have issued non bailable warrant to Rahimaben who was made witness. That, version of Rahimaben is not properly considered in a true manner by the learned trial judge. That, however, no closing pursis of the evidence of prosecution was passed by the prosecution and learned prosecutor had applied for summoning witness Rahimaben and other witnesses. However, without following any proper stage for the prosecution, evidence of the prosecution was closed and accused No.2 was acquitted and lesser sentence was awarded to accused No.1. That, considering the evidence submitted by the prosecution, both the accused should be convicted and sentenced as provided under the law. Hence, it was requested by Mr. Oza, learned APP for the appellant to quash and set aside the judgment and order of acquittal of accused No.2 and award maximum punishment and convict the accused No.1 under Section 29 of the N.D.P.S. Act. 7. On the other side, Mr. Hence, it was requested by Mr. Oza, learned APP for the appellant to quash and set aside the judgment and order of acquittal of accused No.2 and award maximum punishment and convict the accused No.1 under Section 29 of the N.D.P.S. Act. 7. On the other side, Mr. Aziz An Alvi, learned advocate for the respondents submitted in his arguments that, so far accused No.2 is concerned, he was charged of conspiracy qua him but, at the instance of accused No.1 during the course of investigation his name was revealed, and therefore, search of this person and house has been carried out by the Investigating Officer. That, panch witness PW5 has not supported the case of the prosecution and he had completely refused to have seen three papers found from the pocket of accused No.2 when he was searched personally. That, P.S.I Mr. Vaghela in his testimony has also admitted that they have reached to the place as described by accused No.1 and the person, whose description was given was found to be accused No.2 i.e. Shabbir-Ul-Haq alias Munnabhai alias Salimbhai Hidayatullah Pathan and three pieces of one paper had been found from his pocket. However, nine days remand was granted, nothing incriminating was found against accused No.2. As per the prosecution case, he is said to have supplied the muddamal of purchasing from the absconding accused, but, barring the admission of accused No.1, there does not appear any evidence on record either substantive or corroborative to implicate accused No.2 in the alleged offence. That, the said statement was indisputably made under Section 25 & 26 of the evidence act. That, accused No.1 is already convicted and awarded sentence for a period of 11 years and fine of Rs.1 lakh, in default of payment of fine to undergo further rigorous imprisonment of 2 years for the offences punishable under Sections 21(C) and 8(C) of the NDPS Act. As the accused No.2 is acquitted, there would be no application of Section 29 of the NDPS Act. That, punishment and sentence awarded to accused No.1 is the discretionary power and it cannot be interfered with by this Court. That, no punishment can be awarded under Section 29 of the NDPS Act. Considering the facts and circumstances of this case, it was requested by Mr. That, punishment and sentence awarded to accused No.1 is the discretionary power and it cannot be interfered with by this Court. That, no punishment can be awarded under Section 29 of the NDPS Act. Considering the facts and circumstances of this case, it was requested by Mr. Aziz Alvi, learned advocate for respondent No.2, to confirm the judgment and order passed by the learned trial judge and dismiss the appeal. 8. Having considered facts and circumstances of the case, submissions made by learned advocates/APP for the respective parties, perusing the record of the case, impugned judgment and order, it appears that prosecution was able to prove the case against the accused No.1, and therefore, he was awarded rigorous imprisonment for a period of 11 years and fine of Rs.1 lakh and in default to undergo rigorous imprisonment for more 2 years for the offences punishable under Section 21(C) and 8(C) of the NDPS Act. While the accused No.2 Sabirul Haq alias Munnabhai alias Salimbhai Hidayatullah Pathan was given benefit of doubt of the offences punishable under Sections 21(C) and 8(C) read with Section 29 of the NDPS Act, and therefore, he was acquitted. Accused no.2 was given benefit of doubt under Section 29 of the NDPS Act. Now, to consider the issue involved in the present appeal whether the accused No.1 can be convicted under Section 29 of the Act, let us refer to Section 29 of the Act, which reads as under:- “29. Punishment for abetment and criminal conspiracy:- (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogus to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.” 9. The learned trial judge has not accepted the prosecution case so far accused No. 2 is concerned and charge of criminal conspiracy was not proved. In absence of any case attempted against accused No.2, the accused No.1 cannot be convicted or punished for abetment and criminal conspiracy. The gist of the offence of conspiracy then lies, not in doing the act, effecting the purpose for which the conspiracy is formed nor in attempting to do them, nor in inciting others to do them, but in the form of the scheme or agreement between the parties. The essence of the offence of criminal conspiracy as defined in the section is that there must be an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do such acts. So long as such a design rests only in intention, it is not punishable. There was no evidence available with the prosecution to suggest that any such averment and/or criminal conspiracy within the meaning of Section 29 of the Act. In absence of any evidence against accused No.2, it was not possible for the learned trial judge to take the view that Section 29 was attracted. 10. From the evidence of the prosecution, there exist no cogent and substantive evidence to prove the conspiracy. Proof of conspiracy is strictly conditional upon there being reasonable grounds to believe that two or more persons had conspired together to commit an offence. 10. From the evidence of the prosecution, there exist no cogent and substantive evidence to prove the conspiracy. Proof of conspiracy is strictly conditional upon there being reasonable grounds to believe that two or more persons had conspired together to commit an offence. In that view of the matter, Section 120B needs to be considered, which reads as under:- “120B Punishment of Criminal conspiracy:- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both.” 11. Recovery of narcotic substance from possession of accused No.1, if any, would not connect accused No.2. Such recovery of the narcotic substance is not supported by evidence to connect the accused No.2. Thus, in light of the above discussion, we find no compelling and substantive reasons to interfere with the impugned judgment and order of acquittal dated 30.03.2005 passed by the learned Additional sessions Judge, Court No.7, Ahmedabad, in Sessions Case No. 187 of 2003. This Court has gone through the record of the trial Court and it is found that vide exh. 11, prosecution has filed its closing pursis for closing its evidence of the witnesses. It also appears that no application was submitted by the prosecution before the trial Court requesting to issue summons to Rahimaben and other witnesses. The ground raised by the appellant in paragraph 9 of the appeal memo in respect of no passing the closing pursis by the prosecution, applying for summoning witness Rahimaben and other witnesses are not found true from the record of the trial Court. Arguments advances by learned Appellant Mr. Rutvij Oza, for awarding sentence to accused No.1 under Section 29 of the NDPS Act, cannot be accepted in absence of any conspiracy by accused No.2. Hence, it is not legal or proper to accept these arguments. 12. The present appeal is, accordingly, dismissed. Arguments advances by learned Appellant Mr. Rutvij Oza, for awarding sentence to accused No.1 under Section 29 of the NDPS Act, cannot be accepted in absence of any conspiracy by accused No.2. Hence, it is not legal or proper to accept these arguments. 12. The present appeal is, accordingly, dismissed. R & P lying here be sent back to the Court below, forthwith.