(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal, under section 378 of the Code of Criminal Procedure, 1973, has been filed by the State of Gujarat against the judgment and order of acquittal dated 17.11.1989 passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 170 of 1989 for offences punishable under sections 21 and 20-(b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ”the Act”).
2. The facts of the case in brief are that Police Inspector Ishwarbhai Dahyabhai Mayavanshi had received information on 20.3.1989 at about 9.55 p.m. that at the entrance of Chali of Chandbhai in Dabgarwad Dandiawad, one Abdulsattar Abdulkarim was selling charas and brown sugar. He, therefore, called two panchas and the information was given to the Superintendent of Police after making entry in the station diary and reached the place of offence. They stopped the jeep car at a distance of 25 ft. from Dabgarwad and thereafter, the P.I., Ishwarbhai Dahyabhai, PSI Rajput and PSI Prajapati went ahead and they saw the accused running away with one Can (Dolcha) of aluminium through the street of Chandbhai. PSI Rajput and PSI Prajapati chased him and caught hold of him and search was carried out and 24 grams and 450 m.grams of brown sugar (heroin) and 23 grams and 950 m.grams of charas were found from the Aluminium Can (Dolcha) which was with him. He did not have any pass or permit to carry such contraband with him. Necessary panchnama was drawn in presence of panchas and officers of Forensic Science Laboratory. Thereafter they took the accused with the muddamal articles to the police station, complaint was lodged at Exh.15 and registered as CR.No.95/89 for the offences punishable under sections 20-(b) and 21 of the NDPS Act and sections 66(b) and 65 (a) of the Bombay Prohibition Act. After investigation, charge sheet was filed against the accused and as the offences under sections 20-(b) and 21 of the NDPS Act were triable exclusively by the court of Sessions, the learned Chief Metropolitan Magistrate committed the case to the Sessions Court under section 209 of the Criminal Procedure Code.
3. The respondent-accused pleaded not guilty to the charge and claimed to be tried.
4. To prove the case, after framing of the charge, the following prosecution witnesses were examined - PW 1 Jaykrushna Devendraprasad, Exh.7, PW 2 Chandansing Naransing, PSI, Exh.8, PW 3, Pravinchandra Jesinghbhai, Exh. 9, PW 4 Daudsing Mulsing, Exh.11, PW 5, Ishvarbhai Dahyabhai Mayavanshi, PI, Exh.13, PW 6, Dilipkumar Bhagvatlal Talati, Exh.17, PW 7, Usha Indubhai Exh.19, PW 8, Rajnikanta Ramakant, Exh.27, PW 9, Fatesinh Nathusinhy, Jamadar, Exh.28.
5. Besides the aforesaid oral evidence, the documentary evidence such as complaint Exh.15, panchnama of scene of offence, FSL report, Biological report etc. produced by the prosecution which were also taken into consideration by the learned Sessions Judge.
6. After closing pursis by the prosecution, the learned Addl.City Sessions Judge recorded further statement of the accused under section 313 of the Code of Criminal Procedure by which the respondent-original accused took the defence of 'total denial' not only that but he contended that the muddamal Can (dolcha) containing muddamal articles of brown sugar and charas as alleged, was not found from his possession. After hearing the arguments of the defence Advocate, the learned Addl.City Sessions Judge has acquitted the respondent-original accused as aforesaid.
7. We have heard the learned APP for the appellant- State of Gujarat. The learned APP has made written submissions and vehemently argued that the learned trial Judge has erred in discarding the evidence of the prosecution witnesses who had supported the prosecution case which resulted into miscarriage of justice. He submitted that the learned trial Judge while acquitting the respondent-accused, had observed that the information received on telephone was not sent in writing to the concerned Senior Officer. He further argued that the learned trial Judge ought to have appreciated that the PW 5, Ishvarbhai Dahyabhai Mayavanshi had deposed that he had sent the information to the superior officer. That the learned trial Judge has erred in appreciating the prosecution evidence which clearly shows that the respondent- accused was found with the articles which are covered under Narcotic Drugs and Psychotropic Substances Act. That the learned trial Judge also erred in appreciating the evidence of panch witnesses. He finally submitted that the learned trial Judge ought to have held that provisions of section 41 (2) of the Act are not mandatory and are directory. He therefore submitted that looking to the aforesaid grounds, this appeal be allowed and the appropriate order of sentence be passed in accordance with law.
8. Learned Advocate Mr Pratik Barot for the respondent-accused urged that the trial court has rightly appreciated the evidence on record and the reasons recorded by it for recording the finding of acquittal are reasonable and cogent. He submitted that it is an admitted fact that the secret information was received by prosecution witness No.5 Ishwarbhai D Mayavanshi on 20.3.1989 at 9.55 p.m, but instead of writing it down on paper and informing the same to his superior officer it is stated that the same was conveyed to the concerned Senior Officer. Thus there is clear breach of section 42 of the NDPS Act. Also as soon as the information was received, the panchas were called for. He further submitted that there are clear contradictions in the depositions of the prosecution witnesses which go to the root of the matter. The correction made in Exh. 18 after the copies of the same were already supplied to the respondents-original accused as well as to the Court shows their ill-intention. In such situation, the court will definitely think twice before placing any reliance on the investigation carried out by such officers and accordingly the respondent-accused has been rightly acquitted by the trial court. Learned Advocate for the respondent-
accused further argued that this being an appeal against order of acquittal, the judgment and order rendered by the trial court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. He, therefore, prayed that the appeal be dismissed.
9. We have carefully gone through the entire documentary evidence along with the judgment and order dated 17.11.1989 passed by the learned Addl.City Sessions Judge, Ahmedabad in Sessions Case No.170 of 1989. As per the case of the prosecution witness No.5, P.I., Ishwarbhai Mayavanshi who is the complainant also, on 20.3.1989 at 9.55 p.m., he had received telephonic information that 'at the entrance of Chali of Chandbhai in Dabgarwad Dandiawad one person named Abdul Sattar Abdul Karim was selling charas and brown sugar' and thereafter the entire police machinery had geared up and had come to the place of offence for raiding and investigation after following all the procedure for the same. After much discussion regarding the dispute of the information received by the police officer, the learned trial Judge has noted as under:
1. “...The fact remains that PW 5 Ishwarbhai Dahyabhai at Exh.13 has not informed in writing about the information received by him on telephone to Superintendent of Police, Dariapur police station...”
Regarding the correction made in Exh. 18, the learned trial Judge has observed in pages No.11, 12, 13 and 14 of the judgment as under:
“...We have on record the evidence of important witness PW 6 Dilipkumar Bhagvatlal Talati at Exh.17 who says that at about 9.00 to 9.30 Dr. Dahia had come to his house who is the Assistant Director in Forensic Science Laboratory to inform him that they had to take visit in respect of the crime of brown sugar. So, by taking the necessary chemicals they went there and there they were shown one packet and some other small packets. We are not concerned at this stage about the result of the chemical analysis carried out by him but we are mainly concerned with the report submitted by him at Exh.18. This report was originally typed one. If we look at this report at Exh.18, it creates great doubt as regards the credibility of the prosecution witnesses as to when the information was received and as to when they went to the scene of offence and carried out the raid and seized the muddamal articles as deposed by the complainant. It has been stated that they had visited the scene of offence in Popatiavad area under Dariapur police station in respect of brown sugar Crime No.95/89 on 20.3.89 at 9.0 by night. Thereafter the place was corrected as Dandiavad and it is stated that at 9-0 a.m. the call was received and they visited the place of crime at 11-0. This witness has been cross examined as regards this correction also in para 2 of his deposition he admits that he made this correction after taking this document from the learned Additional Public Prosecutor. But he did not know at that stage whether the copies of the said document have been supplied to the accused as well as the court. He says that the Crime Register was not with him and a police man had come with that number.
So this document must have been prepared on the next day. He says that when he had come to the court on the first date, there is no mention about the test of CHARAS then why this witness made this correction is also a matter of great concern and doubt, but it is apparent that if he and Dr.Dahia visited the scene of offence by night, then the other evidence of the prosecution cannot be accepted as true. If it was a mistake of this witness to write down that time as 9-0 then he ought to have made it very clear to the court that he had through oversight or mistake mentioned the time but in fact they had reached the scene of offence at 11-0 and one can expect such type of explanation. But this witness went one step further and made the necessary corrections in Exh.18 after the copies of the same were already supplied to the accused as well as to the court. Let us say that PW 5 Ishwarbhai Dahyabhai had to say in this respect. He has also been cross-examined at length. In para 7 of his cross-examination he says that the necessary correction made in Exh.18 in Gujarati was not there when he handed over the case papers to the office of the Public Prosecutor. He also admitted that in this document at Exh.18, it was mentioned that the officer concerned had reached the scene of offence at 9-0 but he did not have any idea when he read it that that it is not consistent with the prosecution case he specifically admitted that at 9-0 by night nothing of this case was in existence. He also frankly admitted when the copies of this document at Exh.18 were supplied to the accused as well as the court the correction made in the register was not there in that document at Exh.18. So this correction as regards the time of reaching the scene of offence by the officers of the Forensic Science Laboratory also throws doubt as to whether the complainant as well as PW 2 Chandansinh Naransinh might have received the information at 9-55 hours and thereafter had gone to the scene of offence. ”
10. The observations and findings by the trial court relating to the panch witness reads as under:
“...It has been strenuously contended by the learned advocate Shri N.R. Shah for the accused that this panch witness is a police witness. In para 6 he has admitted that one policeman used to hire his rickshaw of and on but that does not mean that we should throw overboard his evidence but we have to closely scrutinise it. As regards the time of panchnama, we have already stated earlier that the panchnama was in fact drawn at about 12-0 midnight as per the say of this witness but he says that the time of commencement of this panchnama at 10-35 hours is not correct. If we refer to the last paragraph of his deposition, he says and contradicts the police officers when he says that the gold-smith had carried out the weight prior to the coming of the Analyser. According to him, after the gold-smith carried out the weight, the articles were put in tin in the Muddamal articles Can and they waited for the Chemical Analyser. According to him, the gold- smith had carried out the weight of CHARAS only but did not carry out the weight of other bags. According to him, in the same manner, the weight of the bags was carried out. So also he says that the substance of all the packets were put together and thereafter the weight was carried out. So on this material part of the prosecution case, this witness contradicts the police officers. According to him, one packet was prepared out of the 18 packets and the papers of the packets were thrown away, while we see as per the say of the prosecution case that they were also preserved and put in one of the muddamal tins bearing mark 'C'. PW 3 Pravinchandra Jesinghbhai says that he did not know what was packed in each tin. He also says that no paper was wrapped on the tin and no packet was prepared. He did not know what was inscribed on the seal. According to him, he had not given proper attention when the sealing process was going on. So we cannot rely on the evidence of PW 3 Pravinchandra Jesinghbhai and say that he is a truthful witness. It may be that he is not supporting the prosecution case for reasons best known to him. PW 1 Jaykrushna Devendraprasad at Exh.7 says that he was called at 2-0 p.m. by night. He has not seen anybody else but the police had taken him to Dabgarwad from where it had not so happened that any muddamal articles have been seized ”
In support of his submissions, the learned APP relied upon the following decisions:
(i) State of Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350]
(ii) Mansukhbhai Vithalbhai Soni v. State of Gujarat & Anr. [2003 GLH 694]
(iii) Abdul Salam Yusufbhai Shaikh v. State of Gujarat [2003 (2) GLR 1643]
(iv) Husen Bhenu Malad and Ors. v. State of Gujarat & Ors. [2003(2) GLH 705]
(v) Saiyed Salim Saiyed Hussain Saiyad v. State of Gujarat [2007 (1) GLR 834]
(vi) Krishna Pillai Sree Kumar and Anr v. State of Kerala [AIR 1981 SC 1237]
(vii) Sucha Singh v. State of Punjab [(2003) 7 SCC 643] The learned APP submitted that in fact there was some error in writing the time in the report by the FSL Officers. By giving undue importance to such error about the time, the learned trial Judge has disbelieved the case of the prosecution. He submitted that the learned Judge, without properly appreciating the evidence of all the witnesses, came to the conclusion that on the material part of the prosecution case all the witnesses are not consistent but from their evidence it appears that the sealing process might have been done afterwards also. He, finally submitted that in view of the facts and circumstances of the case as well as the legal provisions applicable to the same and in view of the ratio laid down by this Court as well as the Hon'ble The Apex Court as aforesaid, the acquittal order passed by the learned trial Judge deserves to be quashed and set aside and this Court may pass appropriate order in accordance with law.
11. We are not in agreement with the said submissions of the learned APP because if it was not an error in writing the time in the report by the FSL Officers and if for the sake of argument one considers the same as an error, then in that case, it should not have been corrected the way as referred above by the official of the prosecution side and this conduct of the prosecution witness creates a suspicion against the prosecution case.
12. We are in agreement with the ratio laid down in the above mentioned citations but in our considered view, because of the above referred conduct of the officials of the appellant, none of the above decisions are applicable to the case on hand. So far as the findings recorded by the learned trial Judge out of which some of them are reproduced by this court , the learned Judge has specifically recorded that there are contradictions/corrections regarding the timing, reliability of the panch witness, the sealing process of the muddamal articles conducted by the investigating team and the lacunae in the procedure followed by the Investigating Officer etc. and the learned trial Judge has discussed and dealt with each points in detail and came to the conclusion of acquitting the accused. The learned Judge has also specifically recorded that the prosecution has not been able to prove beyond all reasonable doubt that the muddamal articles have been seized from the accused as alleged and the same have been properly sealed at the same place of seizure in presence of the panch witnesses as according to the prosecution, the muddamal articles have been found from the Aluminium Can (Dolcha). The accused was chased by two Police Officers who have seen the accused at a distance of 20 ft.. It is the case of the prosecution that the accused was running towards Chandbhai's chawl with the Aluminium Can. It is quite natural by a normal human being that if the Police Officers chase an accused then he would certainly have thrown away the Aluminium Can which he was holding and he would not have carried the Can which contains brown sugar or charas as alleged with him. Under these circumstances, we find that the reasons given by the trial court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the trial court has committed any error in acquitting the respondent-accused. We are in complete agreement with the same and we do not interfere with the same.
13. It is well settled that in acquittal appeal where there is a possibility of two views, the one favourable to the accused should be adopted. It is also well settled principles of law that the Appellate Court would be slow to interfere in an order of acquittal until and unless the judgment of the trial court is perverse or demonstrably unsustainable. In the present Appeal, we find that the reasons given by the trial court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the trial court has committed any error in acquitting the accused.
13.1. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
14. In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal fails and is dismissed. The impugned judgment and order dated 17.11.1989 passed by the learned Addl. City Sessions Judge, Ahmedabad in Sessions Case No. 170 of 1989 are confirmed. Bail Bond stands cancelled.
msp
[RAVI R TRIPATHI, J.]
[G B SHAH, J.]