These two appeals arise out of the judgment and order rendered by City Sessions Court, Ahmedabad on 23/03/2005 in Sessions Case No.52 of 2002, whereunder the appellants came to be convicted for an offence punishable under Sections 8 (c) read with Section 20(b)(ii) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as the NDPS Act). They were sentenced to undergo RI for 10 years with a fine of Rs.1 Lac each, for each of these offences, in default, to undergo RI for one year for each of these offences and hence these appeals. 2. As per the prosecution case, the appellants conspired on or before 12/09/2001 to transport and sell contraband 'Charas' and in furtherance thereof on 12/09/2001 at about 5:30 p.m. A1 – Alihussein Bakarali Saiyed, A2 – Abdulkabir Alimohammed Dar and A3 – Khurshidahmed Dar were found to be occupying TATA SUMO No.GJ7H5437 by the officers of Narcotic Control Bureau (for short 'NCB'). On search being conducted, 29.921 Gram of 'Charas' was found. Weighment and seizure was done after following procedure. A4Ibrahim Amritkhan Babi was also charged with same offence. All the accused persons pleaded not guilty and claimed to be tried. After recording of evidence and hearing learned APP and learned Advocate for the accused, the trial Court was satisfied that the offences charged were proved against the accused persons and hence recorded conviction in respect of A 1, A2 and A3 appellants herein. Whereas acquitted A4 who is not before us.
3. We have heard learned Advocate Mr.Pathan appearing for the A1 (appellant of Criminal Appeal No.1372 of 2005), Mr.Agrawal appearing for A2 and A3 (appellants of Criminal Appeal No.2873 of 2008), learned Senior Standing Counsel Ms.Bhatt appearing for respondent No.2 NCB and learned APP, Mr.Dabhi appearing for the respondent No.1 – State of Gujarat.
4. Besides many other points, the two most convincing points, which go to the root of the prosecution case are advanced by learned Advocates for the appellants. According to them, the Offers of the NCB received a secret information at 10:30 a.m. that A2 is going to Ahmedabad for receiving a big quantity of 'Charas' in SUMO vehicle No.GJ7H5437 on 12/09/2011 at 5:30 p.m. This information was reduced into writing and sent to Superior Officer. That information which is reduced into writing is on our record at Exh.23, which runs as under:
“Ahmedabad Dt: 12.09.2001 To The Zonal Director, Narcotics Control Bureau, Ahmedabad Zonal Unit, Ahmedabad.
Sub: Submission of report u/s 42 (2) of NDPS Act, 1985.
Sir, I have to report that I have received a specific information that Mr.Abdul Kabir (Kashmiri) and one of the associate will be delivering a consignment of Charas, a Narcotic Drug to Shri Ali Hussain Saiyyed @ Borsadwali Bapu @ Bapu who will be coming in a white Tata Sumo bearing reg.n. No.GJ7H5437 at Relief Cinema Relief Road in the evening at around 5=30 p.m. On 12.09.2001.
The original information received is placed in a sealed cover bearing seal No.4 of NCB, AZU which is forwarded herewith for your necessary retention. However, the gist of information is already mentioned as above.
This is reported u/s 42 (2) of NDPS Act, 1985.
This is for information and necessary action please. Date: 12.09.2001 Yours Faithfully, Place: Ahmedabad sd/ Time: 10:30 hrs. (Umesh Pathak) INTELLIGENCE OFFICER NCB, AZU, AHMEDABAD.“
5. This information was received on that very day at about 10:30 a.m., as can be seen from evidence of PW No.1Sahjanand Sachidanand Sinh (Exh.16). Similarly, it also emerges from evidence of PW No.2 Umesh Jayeshkumar Pathan (Exh.52) that brother of Chhotabhai Ranchhodbhai in his statement (Exh.30) indicated that Saiyed had approached him in the afternoon at about 2:30 p.m. at Borsad for going to Ahmedabad and decided that he will fix and pay the fare after talking to the owner of the vehicle. It also transpires that this happened at about 2:00 p.m., and thereafter they went to Ahmedabad. They were intercepted by NCB People at Relief Cinema crossroads and were found to carry contraband. They were found in the same vehicle No.GJ7H5437.
6. It was, therefore, argued that secret information purported to have been received in the morning at about 10:30 a.m., is not genuine. It could not have been genuine, because Saiyed approached the driver of the SUMO vehicle only in the afternoon, till then Saiyed himself did not know, which vehicle is hired for going to Ahmedabad and, therefore, the details of vehicle stated in the secret information and names, etc., are concocted subsequently.
7. The second fold of argument is that the Raiding Officers of NCB have not followed the directions issued by NCB in Standing Instruction No.1188, which requires them to complete the procedure of seizure, testing, sampling and sealing to be undertaken at the place where contraband is found. In the instant case, it appears that the investigation is carried out at the place other than the place wherefrom it was found and seized. Even, procedure of drawing sample was also performed at the office of the NCB and not at the place of seizure. These guidelines have not been followed by the Officers of NCB, therefore, it would vitiate the investigation proceedings.
8. Learned Senior Standing Counsel appearing for the vehicle, in which the accused is supposed to go and, therefore, there is no reason to doubt the genuineness of the document. She submitted further that the procedure was not undertaken at the place of interception, search and seizure, but it was done at the NCB office, because there was a big crowd and which could have caused trouble in completing the formality and, therefore, breach of search rule would not vitiate the proceedings.
9. Learned APP, Mr.Dabhi has opposed these appeals.
10. As already stated by us, learned Advocates for the appellants have raised number of contentions, but we do not propose to go into them, because, we are convinced about two of the most important aspects, which render the prosecution case doubtful.
10.1 First, as per the prosecution case, secret information is received at 10:30 a.m., whereunder it was indicated that A2 will be coming to Ahmedabad, near Relief Cinema area for the purpose of collecting contraband 'Charas'. In this context, evidence of PW No.1 – Sahjanand is relevant, because he admits that it came out during his investigation that as per the statement of witnesses recorded, A2 had gone to the busstand for hiring vehicle in the afternoon at about 02:00 p.m. Thereafter, he hired the vehicle and went to the place concerned, which, according to the prosecution, is the place from where he was apprehended.
10.1.1 We are not able to reconcile as to how document Exh.23 prepared at 10.30 a.m. carries the details of vehicle number and timing of A2 coming to Ahmedabad for getting the contraband at 5:30 p.m., and he being found at Ahmedabad, A2 himself could not have known the number of vehicle at 10.30 a.m, since he himself hired the vehicle by going to busstand at 2.00 p.m. The question then is how does the informer know the details of vehicle? The only possibility, therefore, is the socalled secret information and Exh.23 are prepared/concocted subsequently only to add strength and authenticity to prosecution case. We, therefore, find substance in the argument that document (Exh.23) is a concocted document.
10.2 The second aspect that requires consideration is that undisputedly the procedure of seizure was performed at the Office of the NCB and not at the place from where the contraband was seized, as is required to be done under Standing instructions issued by NCB.
11. The resultant effect is that foundation of the prosecution case viz., receipt of the secret information and reducing it into writing, as required to be done mandatorily, is doubtful and concocted. As such, there is noncompliance of requirement of Section 42(2) of the Act.
11.1 Similarly, the standing instructions take colour of law, violation thereof would amount to non compliance of requirements of law.
11.2 The information which is sent to Superior, after reducing into writing, which is at Exh.23 is not shown to be foolproof and 100% genuine. The contents become doubtful and the benefit has to go to the accused. That document is of vital importance and, as it is the foundation of entire prosecution case, and if, that foundation is found to be shaky, the entire structure based on it, also becomes shaky.
12. Our view is confirmed in case of 'Kuldeep Singh Vs. State of Punjab reported in (2010) 10 SCC 219'. Similarly, in case of 'Noor Aga Vs. State of Punjab & Anr., reported in (2008) 16 SCC 417' it has been held that strict evidence of the guilt of the accused has to be brought on record by the prosecution. Here, the very foundation of the prosecution case is shaky and, therefore, no reliance can be placed.
13. So far as the standing instructions issued by NCB is concerned, copy of which is produced before us, there is no dispute that the direction of conducting search, seizure, sampling, etc., at the spot was not followed and it was done at Ahmedabad Office of NCB, since a big crowd had assembled.
14. Having gone through the standing instructions in question, there is no exception carved out that the direction would not apply, if there is likelihood of people gathering. Therefore, noncompliance of standing instructions itself would vitiate the trial.
15. In light of the above factual scenario conviction of the accused persons could not have been recorded by the trial Court.
16. We are informed that the accused persons have already undergone the sentence. We are further informed that the prisoners are released from jail after having served the sentence and as such no further order is required to be passed with regard to their release from jail, except for allowing the appeal and setting aside the judgment and order of conviction under challenge.
17. In the result, Criminal Appeal No.1372 of 2005 and Criminal Appeal No.2873 of 2008 are allowed. The judgment and order of conviction and sentence rendered by the learned Principal Sessions Judge, Ahmedabad City, Ahmedabad in Sessions Case No.52 of 2002 on 23/03/2005 for the offences punishable under Sections 8 (c) read with Section 20(b)(ii) and 29 of the NDPS Act is set aside. The appellants are acquitted of all the charges levelled against them. Fine, if paid by the appellants, is ordered to be refunded to them.
18. In light of the fact that main appeals are disposed of, Criminal Misc. Application No.15382 of 2012 does not survive and stands disposed of CR.A/1372/2005 10/10 JUDGMENT accordingly.
(A L DAVE, J.) (BANKIM N MEHTA, J.) sompura