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2016 DIGILAW 852 (GUJ)

Munawarkhan Rahimkhan Pathan v. State of Gujarat

2016-04-19

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The present criminal appeal has been filed by the appellants - original accused under Section 374(2) of Code of Criminal Procedure, challenging the judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge, Fast Track Court No.1, Ahmedabad (herein after referred to as 'the trial court') on 20.12.2007 in Sessions Case No.97 of 1996, whereby the appellants have been convicted for the offences under Sections 8(c), 20(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the said Act'), and have been directed to undergo rigorous imprisonment for the period of 10 years, and to pay fine of Rs. 1,00,000/-, in default thereof, to undergo rigorous imprisonment for the period of 6 months for the said offences. 2. As per the case of the prosecution, on the secret information having been received by the Police Inspector Shri P.G. Vaghela, Crime Branch, Ahmedabad on 20.01.2006, a raid was laid at Maninagar Railway Station. The appellants - accused having allegedly travelled in the Gujarat Queen, had arrived at the platform No. 1, where they were intercepted by the said Inspector Mr. Vaghela along with his team in presence of the panch witnesses. After following the procedure under the said Act, a search was made of the bags carried by the appellants - accused, and they were allegedly found to have possessed charas in huge quantity. According to the prosecution, the accused No. 1 Munawarkhan was found to have possessed 12 k.g. of contraband substance charas in the rexin bag, carried by him, and the accused No. 2 Mahmadfaruk was found to have possessed six k.g. of contraband substance charas in his rexin bag. The complaint was lodged by the said Police Inspector Mr. Vaghela against both the accused for the alleged offences. The Investigating Officer after carrying out the investigation had laid the charge-sheet before the trial court. The trial court after appreciating the evidence on record, had convicted and sentenced the appellants - accused, as stated herein above. 3. At the outset, it is required to be noted that as per the jail remarks submitted by the learned APP, the appellant No. 2 - accused No. 2 Mahmadfaruk has already undergone the sentence imposed by the trial court, and has also paid the fine, and therefore, has been released by the jail authority. 3. At the outset, it is required to be noted that as per the jail remarks submitted by the learned APP, the appellant No. 2 - accused No. 2 Mahmadfaruk has already undergone the sentence imposed by the trial court, and has also paid the fine, and therefore, has been released by the jail authority. So far as the appellant - accused No. 1 Munawarkhan is concerned, he has undergone sentence of about 9 years and 9 months, and has also paid the fine. 4. The prosecution to prove the charges levelled against both the accused, had examined nine witnesses, and produced documentary evidences. Out of the witnesses examined by the prosecution, the PW-1 Dharmendrabhai Mohanlal Arora and the PW-2 Ashokbhai Premchandbhai Navani were the panch witnesses, who were called by the Police Inspector Mr. Vaghela, and in whose presence, the search, seizure and arrest was allegedly made. However, both these panch witnesses except identifying their signatures on the panchnama, and other documents, have not supported the case of prosecution, and they were declared hostile. 5. The PW-3 Pravinsinh Gatorsinh Vaghela was the Police Inspector, Crime Branch at the relevant time. He had stated in his evidence about the secret information received by him on 20.01.2006, about the raid conducted by him at Maninagar Railway Station in the presence of the members of the raiding party including the panch witnesses, and about the search of the accused made by him, and about the contraband substance having been seized from both the accused. He had also stated about the arrest of the accused, and about the documents prepared, and the panchnamas drawn at the scene of offence. According to him, all the formalities of Section 42 and 50 of the said Act were followed before making the search of the accused, and four packets containing 12 k.g. of contraband substance charas were found from the rexin bag carried by the accused Munawarkhan, and one driving license, two railway tickets of two persons for to and fro journey from Ahmedabad to Vadodara and Vadodara to Ahmedabad, and one receipt of penalty were found on the personal search made of the said accused Munawarkhan. He had also stated that two packets containing six k.g. of contraband substance charas were found from the rexin bag carried by the accused Munawarkhan, for which the said accused did not have any permit with them. He had also stated that two packets containing six k.g. of contraband substance charas were found from the rexin bag carried by the accused Munawarkhan, for which the said accused did not have any permit with them. All the articles found from both the accused, were seized as per the panchnama. The said Inspector Mr. Vaghela had also stated as to how the alleged seized substance was weighed by the shopkeeper Ashokbhai Premjibhai Thakkar, and how the said substance was sealed after taking out and marking the samples under the instructions of the FSL officers, who had arrived on the spot. He had also identified both the accused sitting in the Court, and also identified the muddamal articles shown to him during the course of his evidence. He had identified his signatures on the complaint, panchnama, and all other documents prepared by him in respect of the alleged offences committed by the appellants - accused. In the cross-examination, he had denied that both the accused were falsely implicated by him. While admitting in the cross-examination that on 18.01.2006, he had recorded the statements of accused Munawarkhan, and his sister Jamila in respect of the telegram received by him from one Yasinkhan, he had denied that the said accused Munawarkhan was in his custody on 17, 18 and 19.01.2006. He had denied that the said accused Munawarkhan was not arrested from Maninagar Railway Station on 20.01.2006. 6. The prosecution had examined PW-4 Ashokbhai Premjibhai Thakkar, who had stated inter alia that on 20.01.2006, he having been called by one Constable, had gone to the Police Chowki at Maninagar, and had weighed the substance at the instance of the police party present there. According to him, he had weighed the substance which was black in colour, and of round shape, packed in six packets. He had stated that twelve samples weighing 25 grams each were taken out from the said six packets, and they were kept in 12 separate boxes. Nothing material turns out from his cross-examination. PW-5 Jorawarkhan Chunnakhan Sheikh was the PSO Incharge at Crime Branch, Police Station Ahmedabad on 20.01.2006. He had stated that twelve samples weighing 25 grams each were taken out from the said six packets, and they were kept in 12 separate boxes. Nothing material turns out from his cross-examination. PW-5 Jorawarkhan Chunnakhan Sheikh was the PSO Incharge at Crime Branch, Police Station Ahmedabad on 20.01.2006. He had stated that at about 7 p.m., PI Shri Vaghela had handed over to him one complaint, alongwith other original papers with regard to the raid conducted by him in respect of the NDPS Act, and also the muddamal articles along with reserved samples in sealed condition and the two accused. According to him, he had registered the complaint against the accused, and handed over the sealed muddamal articles to the Crime Writer Head Shri Rameshbhai Nanjibhai, and handed over the further investigation to PSI Mr. K.U. Malik. 7. PW-6 Rameshbhai Nanjibhai Bodar, the Crime Writer Head was examined by the prosecution at Exh. 60. He had stated that he had received the muddamal articles of the case from PSO Jorawarkhan, in respect of which he had made entry in the Anamak Register, and had kept the 18 sealed packets of charas in the safe custody. He further stated that on 21.01.2006, he had sent six packets marked as A-1 to F-1 out of the said 18 packets to FSL Gandhinagar for examination through Constable Prakashsinh. According to him, the said packets were received back from FSL by the said Head Constable Prakashsinh, on 01.03.2006, in respect of which, the entry was made in the Anamat register. He had also stated that all the muddamal articles were deposited by the PSI K.U. Malik in the Court at the time of submitting charge-sheet for which the entry was made in the Anamat register. The said witness was cross-examined at length, however, he had adhered to his version, stated by him in his examination-in-chief. 8. The prosecution had examined PW-7 Rajeshbhai Yashwantrai Rao, who was working as T.T. in the Railways. He had stated that he was on duty as T.T. in the Karnawati Express going from Ahmedabad to Bombay, and he had allotted two seats to two passengers, who were travelling from Ahmedabad to Vadodara after collecting Rs. 300/- from them, for which the receipt was issued. On showing the receipt No. 264109, he had stated that the said receipt was prepared in his writing. 300/- from them, for which the receipt was issued. On showing the receipt No. 264109, he had stated that the said receipt was prepared in his writing. In the cross-examination, he had admitted that there was a signature of one Mr. N.K. Sinha in the said receipt, and the name of Munawar was mentioned at his instance. 9. PW-8 Mr. Prakashsinh Rathore was the Head Constable working in the Crime Branch, and one of the members of the raiding party in the raid conducted by the police Inspector Mr. Vaghela. He had stated in detail about the said raid conducted by Mr. Vaghela, and about the search and arrest made of both the accused, and about the seizure of the alleged substance, and articles found from them. He had corroborated the version of PSI Mr. Vaghela. Lastly, the prosecution had examined the Investigating Officer PW-9 Kalumiya Umarmiya Malek. He was also one of the member of the raiding party, and he had carried out the further investigation after the complaint was lodged by Shri Vaghela against the accused. He had recorded the statements of the concerned witnesses, and had laid the charge-sheet in the Court after collecting sufficient evidence against the accused. He had denied that both the accused were falsely implicated in the case. 10. After the completion of evidence by the prosecution, further statements of the accused were recorded by the trial court under Section 313 of Code of Criminal Procedure. The appellant No. 1, accused Munawarkhan had stated inter alia that on 17.01.2006, the police officers of Crime Branch had arrested him when he was at his home, and on the next day, they had seized his scooter from his home, for which his brother-in-law Mr. Yasinkhan had sent one telegram. Thereafter, on the next day, a false case was registered against him. He had stated that on 20.01.2006, he had neither gone to Vadodara nor had brought any charas from there. He had also stated that he did not know accused No. 2 Mahmadfaruk, and he was falsely implicated in the case. The accused No. 2, Mahmadfaruk had simply denied the allegations levelled against him, and stated that he was falsely implicated in the case. 11. The learned advocate Mr. He had also stated that he did not know accused No. 2 Mahmadfaruk, and he was falsely implicated in the case. The accused No. 2, Mahmadfaruk had simply denied the allegations levelled against him, and stated that he was falsely implicated in the case. 11. The learned advocate Mr. A.B. Vyas for the appellants relying upon the aforestated evidence submitted that the trial court has convicted the appellants - accused on the basis of evidence of the police witnesses alone, as the panch witnesses had turned hostile. He further submitted that there was gross violation of the mandatory provisions contained in Section 50 of the said Act, as both the accused were not individually informed about their right to get themselves searched in the presence of any Gazetted Officer or a Magistrate. In this regard, he has relied upon the decision of the Supreme Court in the case of State of Rajasthan versus Permanand and Another reported in (2014) 5 SCC 345 , in which it has been held inter alia that joint communication of the right, could not be said to be sufficient compliance of Section 50 of the Act. According to him, the provisions contained in Section 55 was also not complied with, inasmuch as, there was no evidence to show that the seized articles were kept in the safe custody in the police station. The concerned Magistrate was also not informed about the alleged seizure of the contraband substance, and about the arrest of the accused. Pressing into service, the report of FSL, he submitted that the alleged substance was not the "charas" as per the definition contained in Section 2(iii) of the said Act, much less could be said to be of a commercial quantity. Taking the Court to the evidence of the raiding officer Mr. Vaghela, he submitted that admittedly the accused No. 1 was interrogated by the said police officer two days prior to the alleged incident, and therefore, the possibility of falsely implicating the accused in the instant case, could not be ruled out. In short, he has submitted that evidence adduced by the prosecution, being highly suspicious, and not reliable, the appellants - accused deserve to be acquitted. 12. The learned Public Prosecutor Mr. Mitesh Amin with learned APP Ms. In short, he has submitted that evidence adduced by the prosecution, being highly suspicious, and not reliable, the appellants - accused deserve to be acquitted. 12. The learned Public Prosecutor Mr. Mitesh Amin with learned APP Ms. Monali Bhatt however submitted that the FSL report having not been challenged by the appellants - accused during the trial, it was not open for the appellants to contend that the alleged substance found from the accused, was not charas. He also submitted that no written communication about right of the accused was required, however, in the instance case, the raiding officer had informed both the accused in writing about their right to be searched in the presence of a Gazetted Officer or a Magistrate. In this regard, he has relied upon the decision of Constitution Bench of the Supreme Court in the case of State of Punjab versus Baldev Singh reported in (1999) 6 SCC 172 . He also submitted that as such the contraband substance having been found from the bags of the appellants - accused, the provisions of Section 50 were not required to be complied with. He has also relied upon the decision of the Supreme Court in the case of Valsala versus State of Kerala reported in 1994 Cri.L.J. 1, to submit that the provisions of Section 55 of the Act were not mandatory, and in any case, the concerned police witness had stated in his evidence that the seized articles were kept in the proper safe custody at the police station. 13. Having regard to the submissions made by learned advocates for the parties, and to the evidence on record, it appears that the panch witnesses, who had allegedly participated in the raid laid by the police Inspector Mr. Vaghela along with the other members, had not supported the case of prosecution, and had turned hostile. Of course, they had admitted their signatures on the panchnama as well as on the other documents prepared during the course of search and arrest of the accused, and seizure of the muddamal articles. Though, it is true that the Court has to be very careful in convicting the accused solely on the basis of the evidence of police witnesses, it is not correct to say that no conviction could be based relying upon the evidence of the police witnesses, if found reliable. Though, it is true that the Court has to be very careful in convicting the accused solely on the basis of the evidence of police witnesses, it is not correct to say that no conviction could be based relying upon the evidence of the police witnesses, if found reliable. If the oral as well as documentary evidence adduced by the prosecution is closely read, it appears that both the accused were duly informed in writing as per Exh. 36 about their right to get themselves searched in the presence of the Gazetted Officer or a Magistrate as per the requirement of Section 50 of the said Act. The said document not only bears the signatures of both the accused, but also bears the signatures of police Inspector Mr. Vaghela as well as both the panch witnesses. In the evidence before the Court also, the said police inspector, Mr. Vaghela had specifically stated as to how both the accused were informed about their rights under Section 42 and 50 of the said Act. The PW-8 Prakashsinh Rathore was also one of the members of the raiding team, and he had also stated in detail as to how the accused were informed about their right after they were intercepted at the Maninagar Railway Station. Though the learned advocate for the appellants has relied upon the decision of the Supreme Court in the case of State of Rajasthan versus Permanand and Another (supra), to submit that joint communication of the right under Section 50 was not the sufficient compliance, the said submission cannot be accepted, inasmuch as, in the said case, only one accused out of two accused had put his signature on the said communication. The Supreme Court, therefore, on the facts of the said case, had found that there was no sufficient compliance of Section 50 of the said Act. The Supreme Court in the said case had considered all the earlier decisions including the decision of Constitution Bench in the case of State of Punjab versus Baldev Singh (supra), in which it has been held inter alia that such information may not necessarily be in writing. The Relevant observation made in the said case of Baldev Singh (supra), may be reproduced as under:-- "57. The Relevant observation made in the said case of Baldev Singh (supra), may be reproduced as under:-- "57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act." 14. So far as the compliance of provisions of Section 55 of the Act is concerned, it may be stated that as per the settled legal position, the said provisions are only directory and not mandatory, and even other wise, it was stated by the PW-5 Jorawarkhan Chunnakhan Sheikh, who was the PSO Incharge at Crime Branch, Police Station Ahmedabad that PI Shri Vaghela had handed over the complaint, original papers, and the muddamal articles along with the reserved samples in the sealed condition, and also the two accused. He had further stated that the said muddamal articles in sealed condition were handed over to the Crime Branch Writer Head Rameshbhai Nanjibhai. The said Rameshbhai Nanjibhai was examined as PW-6, and he had stated that he had made the requisite entry in the Anamat Register with regard to the 18 sealed packets of charas and kept them in the safe custody on 20.01.2006. The said Rameshbhai Nanjibhai was examined as PW-6, and he had stated that he had made the requisite entry in the Anamat Register with regard to the 18 sealed packets of charas and kept them in the safe custody on 20.01.2006. He had also stated that out of the said 18 packets, 6 packets in sealed condition, were handed over to the Police Constable Prakashsinh for depositing the same at the FSL Gandhinagar, and the said packets were also received back from the FSL through the said Constable Prakashsinh on 01.03.2006, in respect of which, an entry was made in the Anamat Register. The said Constable Prakashsinh was also examined as PW-8, and he has also stated that he had deposited the sample muddamal articles at FSL Gandhinagar on 21.01.2006 in the sealed condition, and brought back the same from FSL on 01.03.2006, and handed over the same to the Crime Writer Head. In view of the said evidence, the Court has no hesitation in holding that the muddamal contraband substance seized from the accused was kept in the safe custody at the police station, and the provisions of Section 55 were also duly complied with. 15. As rightly submitted by learned Public Prosecutor Mr. Amin, as per the report Exh. 37 made by the FSL Officer on the spot, the alleged substance found from both the accused was "charas", and thereafter, as per the detailed opinion at Exh. 74 and 75 given by the FSL Gandhinagar, the substance contained in the sample packets was "charas" as per definition contained in the NDPS Act. Though, it is true that an application was made on behalf of the appellants - accused before the trial court to call the concerned expert of FSL for examination, the said application was rejected by the trial court, and the same was not further challenged by the appellants. Under the circumstances, the said opinion of FSL at Exh. 74 and 75 to the effect that the substance found in the sample packets, marked as A-1, B-1, C-1, D-1, E-1 and F-1 contained "charas" within the definition contained in the NDPS Act has remained unchallenged at the instance of the appellants. Under the circumstances, the said opinion of FSL at Exh. 74 and 75 to the effect that the substance found in the sample packets, marked as A-1, B-1, C-1, D-1, E-1 and F-1 contained "charas" within the definition contained in the NDPS Act has remained unchallenged at the instance of the appellants. Under the circumstances, it was not open for the learned advocate for the appellants - accused to contend in the appeal that the said substance was not "charas" within the definition contained in Section 2(iii)(a) of the said Act. 16. Though a cloud of doubt was sought to be created by the learned advocate for the appellants by submitting that the appellant No. 1 was interrogated, and was in custody of Police Inspector Mr. Vaghela three days prior to the date of alleged incident, and was in custody of police on the day of alleged incident, the Court does not find any substance in the same. It is true that Police Inspector Mr. Vaghela in his evidence had admitted that the accused Munawarkhan was interrogated in respect of one case regarding theft of scooter on 17.01.2006, however there is nothing on record to suggest that the said accused thereafter was kept in the custody of Mr. Vaghela till 20.01.2006 to falsely implicate him in the present case. On the contrary, on the personal search of the accused, two tickets and one railway receipt in respect of penalty was found, which were seized as muddamal articles, and the details thereof, were also mentioned in the panchnama, prepared on the spot, from which it was established that both the accused were intercepted at Maninagar Railway Station when they arrived back from Vadodara. It was also duly established by the prosecution that the contraband substances "charas" was found from both the accused in huge quantity, from the rexin bags carried by them, and thus, they had committed the alleged offences under the said Act. 17. It is also pertinent to note that if the accused failed to account satisfactorily about the possession of the contraband substance, a presumption could be raised against them that the accused had committed the alleged offences under the said Act in view of Section 54 of the said Act. 17. It is also pertinent to note that if the accused failed to account satisfactorily about the possession of the contraband substance, a presumption could be raised against them that the accused had committed the alleged offences under the said Act in view of Section 54 of the said Act. In the instant case, the appellants - accused have failed to rebut the said presumption, and therefore, the Court has no hesitation in holding that the prosecution had successfully brought home the charges levelled against them. 18. In that view of the matter, the Court does not find any illegality or perversity in the judgment and order of conviction and sentence passed by the trial court. The appeal being devoid of merits, deserves to be dismissed and is dismissed accordingly. 19. Record and proceedings be sent back to the concerned trial court forthwith.