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2019 DIGILAW 1089 (GUJ)

State of Gujarat v. Vijay Bahadur

2019-11-20

R.P.DHOLARIA

body2019
JUDGMENT : R.P. Dholaria, J. 1. The appellant-State of Gujarat has preferred this appeal under Section 378(1)(3) of the Code of Criminal Procedure against the judgment and order dated 26.09.2007 passed in Sessions Case No. 70 of 2006 by learned Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad, acquitting the respondent accused. 2. It is the case of the prosecution that upon receipt of secret information, the complainant proceeded to carry out raid and during the course of raid, the respondent accused was found with possession of 3677 grams Ganja from the house and thereby, he committed an offence punishable under Sections 8(C) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. Investigation was carried out and chargesheet came to be filed against the accused. Thereafter, the charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 3.1. In order to bring home the charges against the accused, the prosecution examined the witnesses and produced the documentary evidence. 3.2. Thereafter, after filing of closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him. 3.3. At the conclusion of trial and after appreciating evidence on record, the learned trial court delivered the impugned judgment. Being aggrieved by said judgment and order dated 26.09.2007 passed in Sessions Case No. 70 of 2006 by learned Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad acquitting the respondent accused, the appellant - State of Gujarat has preferred the present appeal before this Court. 4. Learned Additional Public Prosecutor Ms. Chetna Shah for the appellant - State of Gujarat has taken this Court through the entire record & proceedings and read over the evidence of material witnesses. Learned APP has argued that the complainant received the secret information from his subordinate official Vikramsinh and in pursuance thereof, a raid was carried out. Learned APP has also argued that during the course of raid, the respondent accused was caught redhanded along with contraband Ganja weighing 3677 grams. Learned APP has argued that the complainant received the secret information from his subordinate official Vikramsinh and in pursuance thereof, a raid was carried out. Learned APP has also argued that during the course of raid, the respondent accused was caught redhanded along with contraband Ganja weighing 3677 grams. Learned APP has further argued that while carrying out the investigation as well as procedure of raid, almost all the mandatory requirements were fulfilled and the complainant and other officials who accompanied the complainant fully supported the case of the prosecution, though the panchas have not supported the case of the prosecution. Learned APP has ultimately argued that the learned trial court failed to appreciate the evidence in its proper perspective and wrongly recorded that the prosecution miserably failed to establish that the contraband article was not in conscious possession of the respondent accused at the relevant point of time and wrongly gave benefit of doubt to him. 5. Though the matter is called out, none is present for the respondent accused. 6. This Court heard learned APP and minutely gone through the entire record & proceedings, evidence of material witnesses and impugned judgment and order. 7. Having heard learned APP and upon perusal of the record & proceedings, the question arises for determination of this Court that as to whether the prosecution established that the contraband Ganja weighing 3677 grams was within conscious possession of the respondent accused or not. 8. In order to appreciate the aforesaid question, this Court has perused the evidence of the complainant wherein he narrated in detail that as to how he received the secret information and carried out the raid. The complainant further deposed that after collecting the contraband from the room at Balister Chali situated within the vicinity of Sejpur, the contraband article along with accused were taken to nearby grocery shop where the mudammal was weighed and thereafter, search & seizure procedure was carried out at different place. In the cross-examination, the complainant admitted that since the accused himself had admitted that he was in possession of said premises, he had not collected any evidence to establish the possession of room situated in Balister Chali. The complainant also admitted that he had not inquired or interrogated as regards the owner of the said place from where the contraband came to be seized. The complainant also admitted that he had not inquired or interrogated as regards the owner of the said place from where the contraband came to be seized. He also admitted that he had not collected any documentary evidence in the nature of Ration Card, Election Card or Electricity Bill to establish the ownership of the said room of the accused at Balister Chali. 9. The documentary evidence at Exh. 44 clearly discloses that the respondent accused wrote letter dated 02.12.2005 for his protection indicating name of two suspects wherein he narrated his residential address at Badshah Chali, Ganganagar, Near Ambaji Mata Temple, Kubernagar, Maghininagar. The record & proceedings also indicates that the said application was received on the very day i.e. on 02.12.2005 and the endorsement is also appearing thereon. In the further statement recorded after conclusion of trial, the respondent accused, on the last question, clearly stated that he had been wrongly implicated in the crime in question as Vikramsinh wanted to rope him in the crime in question and in fact, he was not residing at Balister Chali, but was residing at Badshah Chali. 10. In view of aforesaid nature of evidence, though learned APP strenuously tried to persuade this Court that the accused was caught redhanded along with contraband Ganja, it would be very difficult to accept her submission since the evidence collected during the course of investigation and the depositions are clearly indicative that the respondent accused was not residing at Balister Chali, but was residing at Badshah Chali. The application of the respondent accused is also clearly supporting his say in the further statement that on 02.12.2005, he was residing there and the raid came to be conducted on the following day i.e. on 03.12.2005. It is also clearly admitted by the complainant that during the course of investigation, he had at all not collected any evidence to establish that the respondent accused was in possession of room at Balister Chali, nor collected any documentary evidence in the nature of Ration Card, Election Card or Electricity Bill. Further, the statement of the accused before the police would be hit by Section 25 of the Indian Evidence Act and is also not admissible since it is incriminatory in nature. Further, the statement of the accused before the police would be hit by Section 25 of the Indian Evidence Act and is also not admissible since it is incriminatory in nature. The procedure of raid is also not indicating that the search & seizure was in fact carried out at the room situated in Balister Chali, but it came to be undertaken at the grocery shop situated nearby Balister Chali, which also creates doubt as regards the search & seizure procedure. Consequently, the prosecution miserably failed to establish that the accused was in conscious possession of room situated at Balister Chali where the raid was alleged to have been carried out on 03.12.2005. 11. This Court has also noticed that during the course of trial, the respondent remained in jail for about two years and there appears no minimum sentence as the contraband alleged to have been seized is lesser than the commercial quantity. On that count also, the respondent is sufficiently punished. Further, no concrete or clinching evidence to link the respondent with the crime in question is available on record. 12. In view of above, the appeal being devoid of merits deserves dismissal and is dismissed. The record & proceedings be sent back to the concerned trial court forthwith.