IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2336 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= ANSARI MOHMAD RAKIB AKBAR ALI - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MS SADHANA SAGAR for Appellant(s) : 1,MS BHARTI H RANA for Appellant(s) : 1,MR PRATIK B BAROT for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE N.V. ANJARIA
Date : 24/04/2012
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA)
The present appeal is directed against the judgment and order dated 14th August 2006 delivered in Sessions Case No. 235 of 2005 by the learned Additional Sessions Judge, Fast Track Court No.1, City and Sessions Court, Ahmedabad City, whereby the appellant herein was convicted for the offence under Section 8(c) read with Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), and sentenced to rigorous imprisonment for 12 years and fine of Rs.1 lac, and in default of payment of fine to undergo one year further imprisonment. It was directed that in the period of sentence, set off for period spent in jail be given. Before the trial Court appellant was accused No.1, who was tried with accused No.2 Mohmmad Faridmohmmad Anif Ansari, for the offences under Section 8(c) read with Sections 21 and 29 of the NDPS Act. The accused No.2 came to be acquitted.
2. It was the case of the prosecution that Police Sub Inspector Mr.
Rathod of Gandhinagar Crime Branch, Narcotic Cell, was on duty of general watch since 4:00 a.m. in the morning on 7th May 2005 upon being so required by Police Inspector Mr.Jadeja and other offence. At that time at around 6:00 p.m., said Mr. Rathod received a secrete information that two persons named Farid Ansari and Rakib Ansari, aged 20 and 25 years respectively would be coming to deliver quantity of Charas near Kalupur Meter Gauge railway station. According to information, Farid would have put on white shirt and black pent, whereas Rakib was to be in a biscuit colored full sleeve shirt and black pent. It was the further case that Shri Rathod took down that information on a piece of paper. He thereafter went to the office of CID Crime Branch at Meghaninagar and intimated about that information at around 7:30 a.m. to Police Inspector Shri Jadeja who was present there. Police Inspector Shri Pathan of NDPS Cell and the members of staff present there, were also informed about the secrete information. Thereafter the report of the information was forwarded to Deputy Superintendent of Police, Narcotic Cell, CID Crime, Gandhinagar in a sealed cover through Police Constable one Shri Gadhvi. That was done at around 7:50 a.m. The raiding party along with two Panchas who were called to be the part of team were searched before they proceeded to the meter gauge railway station. The members of the raiding staff were equipped with instruments like seal, paper, threat etc. When the Police Inspector Mr. Jadeja, Police Sub-Inspector Mr. Rathod, the other staff of the raiding party and Panchas all reached in the Government Vehicle near Hanjar Cinema at around 9:00 a.m. and stationed the vehicle there, walking down to the meter gauge railway station. The staff positioned themselves near the ticket window of the railway station, the place of secrete information, to keep a watch. At around 9:30 a.m. two persons with resembling description as per the secrete information, were seen arrived near ticket window. It seemed that they were waiting for somebody. One of them had gray colored cotton bag in his hand which contained some material. After maintaining watch for some time, the raiding party cordoned those two persons and Police Inspector Shri Jadeja introduced himself, and asked their names. One of the person stated that he was Mohmmad Rakib, resident of Gomtipur area, Ahmedabad whereas another person informed that he was Mohmmad Ansari who was also resident of Gomtipur, Ahmedabad. They were given to understand that in view of information received, they were required to be searched. Both of them were also asked as to whether they wanted to be searched in presence of Gazetted Officer or a Magistrate. Both replied in negative.
2.1 Upon search of the cloth bag in possession of Mohmmad Rakib, a transparent polythene bag was found. In that bag four bags packed with and covered with coffee colored substance was kept. There were total four such bags. Plastic one of the four bags was torn on and it was smelting like Charas. Both the persons admitted that they had no permit or pass for keeping such substance.
2.2 Four packets weighing 500 grams, 350 grams, 450 grams and 480 grams respectively were found. The officers from Forensic Science Laboratory who were called, reached the place at around 12.15 p.m. and upon examination of the substance they confirmed it to be Charas. From each of the packets, samples of 50 grams each were taken out. They were put in small plastic containers and were marked as A and A-1, A-2 and B-1, B2 and C, C-1, C-2 and D, D-1, D-2. The total weight of the substance was 1.780 Kg. According to the prosecution, the samples were properly sealed and put into safe custody.
2.3 A complaint was registered with the Kalupur police station for the offences under Narcotic Drugs and Psychotropic Substances Act, 1985. After investigation, the accused were charge sheeted and thereupon they were tried in Sessions Case No.235 of 2005, culminating into the impugned judgment and order convicting and sentencing accused No.1 – the appellant herein.
3. We heard learned advocate Mr. Pratik Barot for the appellant and Mr. R.C.Kodekar, learned Additional Public Prosecutor on behalf of the State.
4. Learned advocate for the appellant took us through the evidence on record. After initial submission on various points, as he could not convinced the Court, he limited his submission concentrating on the aspect of the procedure of sealing of the contraband material by submitting that the procedure in that regard was defective against the settled norms laid down and emphasized by this court in several decisions. He submitted that on that count, the appellant-accused was entitled to benefit of doubt. Learned advocate submitted the correct procedure for sealing of the samples was to be that at the time of sealing, one set of the slips containing the signatures of panch witnesses as well as the investigating officer would be placed inside the container of the sample. The second set of the slips containing the signatures by the said persons were required to be affixed on the container and thereafter the containers/ bags were to be stitched. The second set of slips containing signatures of Panch witnesses and the investigating officer would be wrapped around the packet/bag and the seal would be applied covering the slip. It was submitted that it was not proved that the requisite procedure was followed and it remained in the realm of doubt whether the slips were placed on the container/bag/packet of the sample and thereafter the seal was applied. Learned advocate for the appellant relied on the following judgments in support of his contention.
4.1 On the other hand, learned Additional Public Prosecutor submitted that from the evidence it was clear that the sealing procedure was properly complied with. It was submitted by him that the accused having been found in conscious possession of the contraband Charas of the commercial quantity and the statutory requirements under the Act having been followed, the conviction recorded by the trial Court was proper.
5. Learned advocate for the appellant in support of his aforesaid contention relied on the following decisions.
(i) In Jitendra alias Sanjaykumar Suryakant Desai Vs. State of Gujarat in Criminal Appeal No.323 of 1996, decided on 17.08.2001 by a Division Bench of this Court.
(ii) In Ganpatram Punmaram Vishnoi Vs. State of Gujarat in Criminal Appeal No.287 of 1999, decided on 07.05.2002 by a Division Bench of this Court.
(iii) In Navinkumar Vyas Vs. State of Gujarat [(2007) 1 GLH 131]
(iv) In Criminal Appeal No.2088 of 2005 with Criminal Appeal No.2203 of 2005, decided on 25.09.2008 by a Division Bench of this Court.
(v) In Govindbhai Becharbhai Kasodaria Vs. State of Gujarat in Criminal Appeal No.2029 of 2008, decided on 29.01.2009 by a Division bench of this Court.
6. It cannot be gainsaid that in the investigation and trial of the offence in relation to the narcotic drugs and contraband, the procedure to be adopted while sealing the contraband material seized has its own importance and significance, which was duly highlighted by Division Bench of this Court in Govindbhai Becharbhai (supra) as under.
“The very purpose behind carrying out the search, taking of sample and sealing in presence of panch witnesses is to ensure that there is no scope for any mischief in the procedure required to be followed. At the time of sealing, slips containing signatures of panch witnesses as well as the investigating officers are affixed on the article seized and seal is applied over it, so that in case of any attempt for tampering with the article seized, the seal would be broken or the slip would be torn, which would immediately reveal such attempt.”
6.1 Proceeding to consider the issue whether in the present case the requirement of sealing was duly adhered to, the material evidence on record included the panchnama (Exh.43) carried out by two panchas namely Babubhai Kanchibhai Rana (PW-1 Exh.9) and one Srikant Govidbhai Nikhare. Exh. 43 inter-alia mentioned that during the search of the accused persons, for packets were recovered containing the contraband Charas. They were weighed to be of 500 grams, 350 grams, 450 grams and 480 grams respectively. Two samples of 50 gram each were drawn for sending to Forensic Science Laboratory and another as a reserve sample, which were placed in two different transparent plastic bags. In those bags, the slips containing the signatures of two panchas and accused persons were inserted. The reminder quantity was packed in the plastic and then it was kept in transparent plastic container and slips were placed inside. On the top of each of them, slips containing the signatures were placed. The panchnama recorded the same procedure in respect of three other packets and the sample drawn therefrom.
6.2 In order to prove the contents of the panchnama, out of the two panchas, Babubhai (PW-1) was examined who in his evidence at Exh.9 stated only that the slips containing the signature of two panchas were inserted inside the main container as well as the small containers of samples. He stated that thereafter they all were sealed. According to him, such procedure was applied in connection with all the four packets from which the samples were drawn. PW-1, therefore, did not say that on the containers containing the samples of 50 gram and the container in which the reminder quantity was packed, the thread was applied and slips of containing signatures were kept and the seals were applied thereover. His evidence did not in express terms reveal that the slips were kept before applying the seal on the containers and that the slips were under the seal. Thus, the evidence of PW-1, who had carried out panchnama was at variance with what was recorded in the panchnama (Exh.43) and materially differed.
6.3 In conjunction with above, considering the evidence of Shanabhai Jivabhai Baranda (PW-3, Exh.50), a PSO in the Ahmedabad Railway Police Station, deposed that the police inspector Jadeja had come to him at 18.15 Hrs. on 07.05.2005 and stated that the accused were caught with contraband Charas and the offence was required to be registered against them. He had taken the custody of Muddamals comprised of the samples. He stated that they were in sealed condition, but was unable to state whether the slips were pasted over the containers of the samples. The evidence of Hirabhai Rathod (PW- 4, Exh.53), who was Police Sub Inspector in the NDPS Cell, CID Crime, Gandhinagar at the relevant time, showed that in the sealing in respect of the first packet and the samples drawn therefrom was duly applied by placing the slips on the container also with a seal applied thereover. However, in respect of the sealing treatment given to the other three packets, his evidence was not consistent and it was suggested only that the slips were placed inside the containers, without stating that the slips were placed also on the closed container and the seal was applied thereon. D.A.Jadeja (PW-2), who was Police Inspector, Narcotic Cell at the relevant time and who headed the raiding party, in his evidence at Exh.26, however, stated that the sealing procedure was properly applied.
7. On a collective reading of the evidence above, it cannot be gainsaid that the evidence with regard to the adoption of requisite sealing procedure was not consistent and cogent to be able to convincingly conclude that in the sealing process, in respect of each of the containers in which the contraband substance was packed after seizure as well as for the containers of the drawn samples were kept, the procedure of sealing as required in law was scrupulously applied. Whether the slips containing the signatures of panchas and accused persons were kept outside over the packed containers and whether the seal was applied thereon so as the slips to remain under the seal, was quite uncertain in light of the inconsistent evidence. Therefore, the sealing procedure undertaken was not full-proof to meet with the requirement of law.
7.1 As noted above, the sealing procedure to be in accordance with law, would require that the slips containing the signatures would be placed inside the container in which the seized contraband is packed and the containers of the samples drawn.
Similarly, another set of slips with signatures would be required to be placed on the packed containers both main as well containing the samples, after packing them with thread and the seal would be applied on the slips. In other words, the requirement is two-fold. The slips would be kept inside each of the containers and the another set of such slips would be on the top of each of the containers after wrapping with a thread and the seal would be applied so as to keep the slips with signatures under the seal. This procedure is to be adhered to for the main container as well as for the containers of samples, as observed in Govindbhai Becharbhai (supra).
“Since the defect in sealing procedure while sealing the contraband article or drawing samples therefrom would go to the root of the prosecution case and affect the investigation and the trial and since we have found such a defect in the procedure, we do not propose to deal with the other aspects of the appeal.”
7.2 Similarly, the following observations by Division Bench in Jitendra alias Sanjaykumar (supra) are also relevant and, therefore, extracted hereinbelow.
“Here the contraband seized was sealed in presence of Panch witnesses but the slip containing signatures of the Panch witnesses and the Police Officer was placed inside the cover and, thereafter, seal was affixed. In fact, that slip ought to have been wrapped around the packet containing the contraband in a manner that without tearing the slip and breaking the seal, opening the packet would not be possible. Here, because the slips were put inside the bag, the seal could have been opened by the police, tampering could have been done, the slips could have been again replaced and the bag could be sealed because the seal is with the police. Under these circumstances, the sealing procedure has not been followed properly and benefit of doubt ought to have been given to the accused persons.”
7.3 It was observed further in paragraph 5.
“There is no dispute that the seal remains in custody of the police. The possibility of tampering with the muddamal at a later stage and then again resealing the same by the Investigating Agency cannot be ruled out. The very purpose behind carrying out the search, taking of sample and sealing in presence of Panch witnesses is to ensure that there is no scope for any mischief in procedure required to be followed. At the time of sealing, slips containing signatures of Panch witnesses as well as the Investigating Officer are affixed on the articles seized and a seal is applied over it, so that, in case of any attempt for tampering with the article seized, the seal would be broken or the slip would be torn which would immediately reveal such an attempt. If the slip is put inside as was done here, as discussed earlier, the possibility of tampering cannot be ruled out. Under the circumstances, the procedure followed for sealing in the instant case cannot be said to be proper and free from any possibility of tempering. The procedure, therefore, cannot be said to be beyond the scope of any reasonable doubt and in that event, benefit must go to the accused.”
8. The other decisions relied are not required to be discussed at length as they reiterate the same proposition on the aspect of the procedure of sealing.
9. In light of above, the evidence led by the prosecution about the observance of sealing procedure was inconsistent and unreliable.
When the question is of procedure to be applied in the process of sealing of the contraband, the evidence has to be clear, cogent and consistent, having regard to the object behind proper sealing. Even a small slip or omission in the procedure of sealing would give a room for tampering. From the stage of seizure till the contraband substance reaches the Forensic Science Laboratory, all samples thereof have to be preserved intact by applying a full-proof sealing as per the above said requirement set out in the judicial decisions. The evidence required to be brought on record by the prosecution on that aspect, therefore, has to be equally full-proof. When that is not the position obtained and the sealing procedure is found to be defective, a benefit of doubt would go to the accused.
9.1 The foregoing discussion would show that the procedure followed by the investigating agency at the time of seizure and ceiling is defective and conviction cannot be founded on such seizure in light of various judicial pronouncement discussed hereinabove.
10. The appeal, therefore, succeeds. The judgment and order of conviction and sentence rendered in Sessions Case No. 235 of 2005 dated 14.08.2006 passed by the learned Additional Sessions Judge, Fast Track Court No.1, City Sessions Court, Bhadra, Ahmedabad City, is hereby set aside. The appellant-Ansari Mohmad Rakib Akbar Ali is acquitted of all the charges levelled against him. He is ordered to be set at liberty forthwith, if not required in any other case. Fine, if any paid by the appellant, is ordered to be refunded to him.
[A.L.DAVE, J.] [N.V.ANJARIA, J.] cmjoshi