(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals arise from the common judgement and order of the learned Sessions Judge, they are considered simultaneously.
2. Both the appeals are directed against the judgement and order of the learned Sessions Judge in Sessions Case No.310 of 2004, whereby the learned Sessions Judge has convicted both the accused for the offence punishable under Section 8(c) read with Section 20(b)(ii) of NDPS Act and has imposed sentenced of 10 years' R.I. with the fine of Rs.1,00,000/- with the default sentence of one year's R.I., if the fine is not paid.
3. As per the prosecution case, on 19.9.2004 when Shri S.B. Trivedi, Police Inspector, Crime Branch, Ahmedabad (PW-1) was at his office, he received the information that two persons; one named Amjad Ali Fojdar Ali Shaikh, who had put on Blue Jeans and dark Blue T-Shirt and another person named Mohmed Jakiruddin Abdul Wahab Shaikh, who had put on White Trousers and Jubha – Kurtha, both native of Bihar, had brought Charas for sale and they were to come near to Pirana Octroi Naka for going to Behrampura via Abad Nursery. Upon the receipt of the said information, PW-1, through his subordinates, called for panchas for making arrangement of the raid. He intimated in writing to his Superior and ultimately they reached the place, where two persons – accused herein were found with the bag on their shoulder, near Abad Nursery coming from Pirana Tolnaka. In Hindi the communication was made for the option available to those persons for getting them searched in presence of any other Government Gazetted Officers or the Magistrate, though the raiding officer – PW-1 was himself Gazetted Officer, but the said option was not exercised and thereafter, upon search, it was found that A-1 was in possession of four packets having weight of 1982.800 gms and A-2 was found in possession of the packets having 1589.300 gms. The weight was known after weighing was undertaken by one goldsmith. For preliminary test the scientific officer was called and it was found that the substance was charas. Thereafter the samples were taken and the seals were applied on all packets and ultimately complaint – Exh.17 was filed for the offence under Section 8(c), Section 20(2) and Section 29 of NDPS Act.
4. The aforesaid complaint was further investigated and thereafter the charge-sheet was filed against both the accused and subsequently the case was being committed to the Sessions Court being Sessions Case No.310/2004. The prosecution, in order to prove the guilt of both the accused, examined 10 witnesses, the details of which are mentioned by the learned Sessions Judge at para 2 of the judgement. The prosecution also produced the documentary evidence of 26 documents, the details of which are mentioned by the learned Sessions Judge at paragraph 3 of the judgement. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of Cr.P.C., wherein they denied incriminating evidence against them. In the further statement, Accused No.1 stated that a bogus case was filed against him when he was arrested by the police and he was not knowing even Gujarati, he had no knowledge for charas and he did not know the colour of charas. No case was registered against him and he had come to Gujarat for job, whereas accused No.2 in his further statement stated that he was not knowing what charas was and he was also not knowing Gujarati or Hindi and was knowing only to write in Urdu, the signature was taken under compulsion and no offence was registered again him. He was giving tuition to his children and was staying with his brother. The panchnama was not prepared in his presence and panch had not identified him.
5. The learned Sessions Judge thereafter heard the prosecution and the defence counsel and ultimately found that the prosecution has been able to prove the case against both the accused and, therefore, the learned Sessions Judge found both the accused guilty for the charged offences under Section 8(c) read with Section 20(8)(ii) of NDPS Act. The learned Sessions Judge thereafter heard the prosecution and the defence on the aspect of sentence and ultimately has imposed the sentences as referred to herein above. Under these circumstances, the present appeals before this Court.
6. The learned Counsel appearing for the appellants, Ms.Krishna Rawal and Ms.Sadna Sagar as well as the learned APP have taken us to the entire evidence on record of all the witnesses as well as the documentary evidences. We have considered the judgement and reasons recorded by the learned Sessions Judge. We have also heard the learned Counsel appearing for both the sides.
7. As per the evidence on record, it appears that PW-1 Mr.S. B. Trivedi was examined and his deposition is at Exh.9. He was the officer, who received information and arranged for the raid. His testimony completely supports the case of the prosecution and the case as stated in the FIR – Exh. 17. The defence in the cross-examination of this witness has not been able to bring about any material contradiction, which may lead to the Court to doubt the credibility of the witnesses or discard his testimony for supporting the case of the prosecution. The testimony of PW-2, Nasirkhan Hebatkhan Sumra – Exh.28, who was Head Constable at the relevant point of time in Ahmedabad City Crime Branch and who was also one of the members of the raiding team has also fully supported the case of the prosecution. In the cross-examination of the said witnesses the defence has not been able to bring about any material contradiction. The testimonies of PW-1, Sharadkumar Balkrishna Trivedi – Exh.9, and PW-2 Nasirkhan – Exh. 28 proved the information received, the raid carried out, psychotropic substance – charas recovered from the possession of both the accused, weight taken of the material, preliminary testing by the scientific officer and taking of samples as well as separating the remaining part and application of seals over all the aforesaid seized items, preparation of panchnama and the process of preparation of panchnama were undertaken in presence of panchas. PW-3 Bhagwanbhai Kalubhai Ahir – Exh.31 has been examined by the prosecution, since he was PSO of the Crime Branch at the relevant point of time. His testimony also fully supports the case of the prosecution for the complaint and 16 packets handed over in sealed condition together with the relevant papers and the entries made in the station diary as well as the preparation of the receipt of muddamal. In the cross-examination of the said witness, the defence has not been able to show any material contradiction. PW-4, Rameshbhai Nanjibhai, whose deposition is at Exh. 34, who was entrusted muddamal and who prepared the receipt for taking custody of muddamal also supports the case of the prosecution. PW-5 – Rakeshsingh, whose deposition is at Exh.38, who was entrusted samples for handing over to FSL and as per his deposition, the muddamal was received by him in sealed condition and when he had handed over to FSL, the same was also in sealed condition. Devisinh Sursinh Mandora – PW-6, whose deposition is at Exh.40, who had received the bag, the receipt of muddamal after testing by FSL and his deposition also supports the case of the prosecution. The prosecution has further examined the panch witness – Narendrabhai Bechardas Kahar, PW-7 – Exh.41. He has also supported the case of the prosecution for preparation of the panchnama, application of the seal and the quantity of contraband articles found from the possession of the accused. The only aspect is that when he was called upon to identify the accused he identified accused No.2, but could not identify accused No.1. In the cross-examination at the one hand, he did state that the writing signed of Panch slips was not prepared in his presence, but subsequently in the very cross-examination he denied that the writing prepared of panch slips was not prepared in his presence. If the overall reading of the cross- examination is considered read with the examination-in-chief, it can be said that the panch witness has stood by panchnama and supported the case of the prosecution. However, as observed earlier, there is minor contradiction, which could be a typographical error or even if such is considered as a contradiction, considering the evidence of other witness as examined by the prosecution, we do not find that it is a case where panch witness has turned out to be hostile not supporting the case of the prosecution, but rather it can be said that the said witness has supported the case of the prosecution, subject to the aforesaid minor contradiction, which should be a typographical error and if genuine, and considered in light of his subsequent deposition, it is not possible to record the conclusion that the panchnama was not prepared in his presence. Therefore, we are not inclined to accept the contention of the learned Counsel for both the accused that PW-7 has not supported the case of the prosecution.
8. The quantity found of the psychotropic substance from the accused has been proved by the prosecution during the deposition of the witness by the prosecution through PW-8, Yunusbhai Kasambhai Meman (Exh. 43), I.O., Nisar Mohmed Sultankhan Malik – PW-9, whose deposition is at Exh. 44, who has investigated into the matter after the raid was carried out has sufficiently explained the manner and mode of investigation. The immediate Superior Officer, then Raiding Officer Shri Girishkumar Laxmanbhai Singhal – PW-10 has also entered witness box and his deposition is recorded at Exh. 49 and he has confirmed the receipt of the intimation received by him prior to the actual raid carried out and also the receipt of the report after the raid was carried out and the work of search and seizure and registration of the complaint was over by PW- 1.
9. The learned Counsel for the appellant No.1, Ms.
Raval raised the first contention that all witnesses examined for proving the raid undertaken by the PW-1 are police witnesses and no independent witness has been examined, except panch witness, PW-7, who has also not identified the appellant of Criminal Appeal No.1099 of 2007 (Original Accused No.1). She, therefore, submitted that the testimony of police witnesses may be termed as doubtful and in absence of any independent witnesses, she submitted that if the panch witness – PW-7, who was the only independent witness has not identified A-1, the accused would be entitled for the benefit of doubt and, therefore, appeal deserves to be allowed.
10. The contention cannot be accepted and is devoid of merit for three reasons; one is that if the raid was carried out by PW-1 and other subordinate officer to him, were the police officers, then in such cases, witnesses would be police officers only and, therefore, merely because the other witnesses are police officers or working in the police department, is no ground to discard the evidence of the prosecution, more particularly when the case is of such type where the presence of other police officers at the time of raid was in normal course of duty and in the cross-examination of such witness the defence has not been able to bring about any cogent material, which may lead the Court to doubt the credibility of such witnesses or the presence at the time of raid being doubtful. The second reason is that it is not a case where there were no independent witnesses at all. The panchs themselves were called and the panchnama was prepared in presence of panchas and they are independent witness, led by the prosecution. When two panchas are there and if the prosecution has examined one panch witness and the panchnama is proved with the corroborative of material, it cannot be said that it is a case where there is no independent witness, examined by the prosecution, but it can rather be said that the independent witness has been examined namely; panch witness by the prosecution – PW-7 Nasir (Exh. 41) and as observed earlier, the testimony supports the case of the prosecution. In any case, his testimony is to be considered with the testimony of PW-1 S.
B. Trivedi, raiding officer – Exh. 9 and Nasirkhan, member of the raiding party – PW-2 – Exh. 28. The third reason is that merely because panch witness could not identify the original A-1 in the Court, it cannot be said that the prosecution case becomes doubtful case. Identification by panch witness – PW-7, though may be relevant, but when the prosecution has already proved the identity of the said accused – original A-1 through the testimony of other witnesses, merely because one panch witness has not identified the original A-1 in the Court, it cannot be said that the involvement of A-1 in the case or that the material found from the possession of A-1 could be said as doubtful.
11. At this stage, we need to record that even if the matter is to be considered through the evidence of other independent witness, then Yunusbhai Kasambhai Mehman – PW-8 whose testimony is at Exh. 43 and who can be said as independent witness, because he is the person who weighed the quantity of psychotropic substance and the said witness – PW-8 has identified both the accused in the Court by pointing out finger to both the persons, who were present in the Court. Under the circumstances, we find that the contention is misconceived, nor can be said as with substance and, therefore, deserves to be rejected.
12. The learned Counsel for appellant of Criminal Appeal No.554 of 2009, Ms.Sadhna Sagar raised the contention that the prosecution has not been able to prove that the material found and the samples taken and the muddamal remained in the same sealed condition and in the submission of the learned Counsel different witnesses have referred to different types of seals and, therefore, the possibilities of tampering of the seals could not be ruled out and under the circumstances, she submitted that if the seals were tampered and after removal of one seal another seal was applied or that there is no consistency about the existence of the same seal throughout, it can be said that the prosecution has not been able to prove the case beyond reasonable doubt and, therefore, the accused would be entitled to the benefits of acquittal.
13. In support of her contention, she has pressed for the description of the seal referred to in the receipt prepared of the muddamal seized at Exh.33, which came on record through the deposition of Bhagwanbhai Ahir – PW-3, Exh. 31 and more particularly note for the description of the seal at the end. It was submitted by her that in the said receipt it has been mentioned as INS.OF.POLICE,A'BAD CITY and in her submission, the letters 'DCB' are not specifically mentioned. She submitted that in the deposition of PW-1, Exh. 9, he has stated that the seal of “Police Inspector, DC Crime Branch, Ahmedabad City” was applied. She further submitted that in the cross-examination of the very witness, PW-1 he admitted that the seals of PI Crime Branch were applied. She submitted that if the aforesaid aspect is considered with the contents of the complaint and exh.17, it is stated that the seals described as 'INSP.OF POLICE, DCB, A'BAD CITY”
were applied. Similarly the same seal is stated in the receipt of the FSL. Therefore, it was submitted by her that the seals applied as stated in the complaint were and referred to by FSL were different than the seals referred to by the aforesaid witnesses in the deposition as well as in the receipt for preparation of the yadi for muddamal and, therefore, it was submitted that the benefit be extended to the accused of such discrepancies in the description of seals.
14. The contention prima facie may show some substance but upon close scrutiny it appears to be without substance. The reason being that there is no contradiction in the exact language of the seal in the complaint as well as in the receipt of FSL. Nothing has come out on record by any specific evidence or otherwise that any person at any stage, who received muddamal or samples for testing were with any tampered seal or the seals were not there. On the contrary the evidence of the witnesses considered with the panchnama, it does appear that the muddamal and the samples were found in sealed condition and were intact. It is not a case where there was difference in language of the seal as sought to be canvassed. For example, seals in English language or seals in Gujarati language or like that. The contention as sought to be canvassed, based on the statement made in the deposition of the witness or reference made in the muddamal pavti is to be considered on the basis of reasonable prudence. When a question was asked to the witness about the seal, he has, in his examination, stated the short description of the seal in the Examination-in-Chief as well as in the cross-examination as referred to herein above. Therefore, merely because when the witness deposes by giving reference of the seal, he cannot be expected to give the full description as it existed of the seals which were applied. Same situation would arise for reference of the seal in mudamal receipt, wherein also the short description of the seal is mentioned. When there is no specific evidence came on record for tampering of the seal at any point of time and when the witnesses have already given their short description of the seal, we do not find, the case of the prosecution could be termed as doubtful. Under these circumstances, we find that the condition does not deserve to be accepted.
15. The learned Counsel for the appellant lastly contended that the default sentence imposed by the learned Sessions Judge of one year R.I. deserves to be interfered with in view of the decision of the Apex Court in the Case of Shantilal v. State of M.P., reported in (2007) 11 SCC, 243, wherein the Apex Court reduced the sentence to six months' S.I. It is true that in the said case the Apex Court reduced the default sentence to six months S.I., while confirming the substantive sentence. But in the very decision, the Hon'ble Apex Court observed for the impeding circumstances to be taken into consideration as that of the financial condition of the accused and the normal circumstances. In the present case, it cannot be lost sight of that more than commercial quantity was seized from the possession of both the accused of charas. We find that the facts of the case on hand cannot be equated with the case before the Apex Court in the case of Shantilal v. State of M.P.(supra).
16. The discretion exercised by the learned Sessions Judge is not such, which may warrant the interference with the default sentence of one year for non-payment of the fine. At the most, such default sentence could be reduced to simple imprisonment as against R.I.
17. In view of the aforesaid observations and discussion, the judgement and order passed by the learned Sessions Judge for holding both the accused guilty and imposing sentence of 10 years' R.I., with the fine of Rs.1,00,000/- does not deserve to be interfered with and the same is confirmed. However, the default sentence of one year R.I. shall stand modified to one year S.I., as default sentence.
18. Ordered accordingly. The appeals are partly allowed to the aforesaid extent only.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod