(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgment and order passed by the learned Special Judge in NDPS Case No. 4/2005, whereby, the learned Judge has convicted the appellant-accused for the offence under sec. 8(c) read with section 20(b)(ii)(c) and 29 of the NDPS Act, and has imposed sentence of 10 years R/I with the fine of Rs. 1 lac and further 2 years R/I for default of payment of fine.
2. As per the prosecution case, one Mr.K.V. Katara, Police Inspector, NDPS Cell (PW-1) received the information that between 13.00 to 15.00 O'clock, one person, named Munsisinh Bihari, aged about 22 years who had put on white pent and white shirt, carrying charas in green bag, was to come at Karjan Pick-up stand, near Karjan - Dhavat Chokadi on Vadodara-Surat National Highway, for giving delivery of Charas. Therefore, after giving intimation to his higher officer, he called for the panchas through his subordinate and reached at the spot and it was found that the accused - appellant herein was in possession of Charas. Thereafter, necessary procedure was followed by the raiding officer for search and seizure and opportunity was also given to the accused if he so desired for search and seizure in presence of any other Government Gazetted Officer, which was not availed by the accused and ultimately search and seizure was made by him. Thereafter, in the presence of two panchas, both the packets were weighed and it was found that one packet was containing 1 kg charas and another packet was containing 500 grams charas. Thereafter, samples were taken and process for sealing of the samples as well as remaining quantity were also undertaken. Thereafter, he filed the complaint with the concerned Police Station. As per the prosecution case, the said complaint was further investigated, and ultimately, charge-sheet was filed, and thereafter, the case was committed to the Court of Learned Special Judge being NDPS Case No. 4/2005.
3. The learned Special Judge framed the charge at the initial stage on 13.6.2005 for the offence under section 8(c) read with section 20 of the NDPS Act against both the accused. Subsequently, the said charge was altered and both the accused were charged for the offence under section 8(c) read with section 20(b)(ii)(c) and under sec.29 of the NDPS Act.
4. The prosecution, in order to prove the guilt of the accused, examined nine witnesses, whose details are recorded by the learned Special Judge at Para-3 of the judgment. The prosecution also produced the documentary evidence of 29 documents, the details of which are recorded by the learned Special Judge at para-4 of the judgment. The learned Special Judge, thereafter, recorded the statements of the accused under section 313 of CrPC and in the further statement, the accused denied the evidence against him and stated that he has been falsely implicated in the case. The learned Special Judge, thereafter, heard the prosecution as well as the accused and found the appellant herein - original accused no. 1 guilty for the offence charged and the learned Special Judge found that the prosecution has miserably failed to prove the case against the original accused no. 2 and, therefore, he acquitted the original accused no. 2. The learned Special Judge, thereafter, heard the prosecution as well as the original accused no. 1 on the aspect of sentence, and ultimately, imposed the sentence as referred to hereinabove. Under the circumstances, the present appeal before this Court.
5. The learned counsel for both the sides have taken us through the oral as well as documentary evidence. We have also considered the judgment and reasons recorded by the learned Special Judge. We have also heard the learned counsel for the appellant Ms.Sadhana Sagar and Ms. Chetna Shah learned APP for the State.
6. As per the evidence of PW-1 Kantibhai Katara, whose deposition is recorded at Exh. 10, the aspects of information received by him, A-1 found to be in possession of Charas in two packets, one having weight of 1 kg and another of 500 grams, has been proved by the prosecution. Even on the aspects of testing, at the first instance, by the Scientific Officer, the samples taken, application of seal, panchnama prepared for search and seizure, are also proved. It is true that panch witness PW-2 Sajanbhai Exh. 48 and another panch witness PW-3 Jagabhai Bhagwanbhai Bharvad Exh. 50 were declared hostile, but they have admitted the signatures on the panchnama prepared and further contents of the panchnama could be said as proved, if considered with the evidence of I.O. Vikramsinh Narendrasinh Solanki PW-9 Exh. 60 read with the evidence of another member of the raiding party Dharmendrasinh Anopsinh Jadeja PW-7 Exh.56. The defence has not been able to prove the tampering of the seal or otherwise nor in the cross-examination of the PW-1 Shri Katara Exh. 10 material contradiction has come out which may lead the court to discard the evidence. The testimony of Dharmendrasinh Anopsinh Jadeja PW-7 Exh. 56 completely supports the prosecution case and his evidence can further be considered in corroboration of the testimony of the complainant PW-1. The testimony of Ashokkumar Ramjibhai Vaghela PW-8 Exh. 58 also supports the case of the prosecution for testing at the first instance and the cannabis plant and cannabis resin known as charas having been found.
7. On the aspects of weight of the quantity found of two packets of charas, the evidence of PW-4 Shatrudhnasinh Gulabsinh Raolji Exh.51 though declared as hostile at the later stage, supports the case of the prosecution inasmuch as he admitted the weighing undertaken by him of the packets and the certificate issued by him and duly signed by him. But, when he denied to identify the accused, a request was made to declare him hostile, so he was declared as hostile. Therefore, the weight of the quantity found can be said as duly proved by the aforesaid deposition of PW-4 Shatrudhnasinh Gulabisinh Raolji Exh. 51 read with Exh. 35, which is a certificate for showing the weight of the charas found from the possession of A-1. The FSL report for the testing of the sample together with the correspondence has come on record at Exh.61, and as per the scientific examination made by the FSL, the material found was containing psychotropic substance known as charas. The evidence of Nashvant Bhimsinh Chaudhary PW-6 Exh. 55, who recorded the complaint and the evidence of I.O. PW-9 Vikramsinh Narendrasinh Solanki Exh. 60, supports the case of the prosecution.
8. The learned counsel for the appellant raised the first contention that when the FIR was lodged, it was mentioned that the offence charged is under section 21 of the NDPS Act though as per the evidence produced by the prosecution, there was no case at all for the alleged offence under section 21 of the Act.
9. The said contention should not detain us more because it is not necessary that when the FIR is registered, the offence by referring to the statutory provision must be categorically spoken or mentioned. It is only at the stage of charge-sheet, such contention may have a role to play. There may be cases where the complaint is filed for a particular alleged offence and when it is further investigated, the other offence may also be found and thereafter the charge-sheet may have been filed by the prosecution for the offences which are found at the completion of the investigation. But such would not vitiate the case of the prosecution merely because at the first instance there was no reference for other offences in the complaint. Therefore, the said contention cannot be accepted.
10. The learned counsel for the appellant next contended that there is no proper requisite compliance of provisions of section 42 sub section(2) as well as section 50(6) of the N.D.P.S. Act. It was submitted by the learned counsel for the appellant that section 42(2) mandates the raiding officer to give intimation to the superior officer, and in her submission, the evidence has come on record to the extent that the intimation was prepared and sent by Shri Katara to his superior officer, but there is no evidence produced by the prosecution for receipt of such report by the said superior officer. It was also submitted that outward register or any official record is not produced for such purpose. She submitted that in the same manner, after the raid was completed, the intimation was also required to be made to the superior by PW-1 under sec. 50(6) of NDPS Act, for which also, no proof is produced for receipt of such report or intimation, and therefore, it was submitted that since at both the level mandatory procedure has not been complied with, and therefore, the accused would be entitled to the benefits of such lapses on the part of the prosecution.
11. Section 42(2) of the Act, provides that when the officer takes down any information in writing under sub section (1), he shall within seventy-two hours send a copy thereof to his immediate official superior. Therefore, the statutes requires him to send the copy of recording of information or the grounds for his belief, it does not provides for the receipt thereof by the immediate superior officer.
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12. As such, when any action is done in official capacity, namely, forwarding of the report by the officer itself presumed to have been received by the superior officer, unless the evidence is otherwise. However, that does not mean that even if any concocted record is produced which is found unreliable by the court, can be considered as the compliance to the aspect of forwarding of such report by the officer to his immediate superior officer. But it is for the defence to bring about such circumstance. It is not the case of the defence that the record so produced is concocted record for making the report for forwarding of the information under section 42(2) of the Act. The document for forwarding of the information is produced at Exh. 11, which is written by PW-1 addressed to his immediate superior Deputy Superintendent of Police, NDPS Cell, CID Crime. There is also reference number of the letter. The said aspect is to be appreciated in light of the testimony of PW-1, wherein, he has deposed that he had enquired from his subordinate Shri Gadhavi about the letter forwarded by him and additionally he had also telephoned to DY.S.P.- the superior officer. The said part of his deposition has not been contradicted subsequently in his testimony, and as such, the aforesaid has come on record in the cross-examination of the said witness PW-1. Under these circumstances, we are not inclined to accept the contention that merely because the receipt of such report was not produced by the prosecution, it can be said that there was non-compliance to the mandatory provisions of sec. 42(2) of the Act. Hence, the said contention cannot be accepted.
13. Same situation would arise for compliance of section 50(6) of the Act, because even under sec. 50 sub-section (6) of the Act, the language used is, to send the copy of the search conducted to the immediate official superior, and such has come on record at Exh. 42, which shows that during the search the quantity of charas was found from the possession of accused and the complaint is registered. If the aforesaid aspect is considered in light of the testimony of PW-1, he has deposed that the said report was forwarded to Deputy Superintendent of Police, NDPS Cell, CID Crime. In the cross-examination of the said witness PW-1, the defence has not been able to bring about the aspects that such record was concocted or not genuine. The material aspect is that in the document at Exh. 42, which is a report forwarded by PW-1 to his immediate superior officer under sec. 50(6) of the Act, there are details of the outward number of his office. In the cross-examination of the said witness PW-1, he has specifically deposed that the report was to be forwarded through office and he had given it to Reader Natubhai. No other material contradiction is brought about by the defence in the evidence of the said witness. Under these circumstances, we are not inclined to accept the contention of the learned counsel for the appellant that there was non-compliance to the provisions of sec. 50(6) of the Act merely because the proof of the receipt of the report was not produced by the prosecution.
14. Learned counsel for the appellant next contended that there is non-compliance to the provisions of section 55 of the Act, inasmuch as, the seals were again not applied by the officer concerned after registration of the FIR and after all seized material was received by him. She submitted that as per the requirement of the Act, second time seals were required to be applied by the officer in-charge of the police station and as per the evidence of PW-6 Nashvant Bhimsinh Chaudhary Exh. 55 read with testimony of PW-9 Vikramsinh Narendrasinh Solanki Exh. 60, no evidence has come on record to show that the seals were also applied by the police officer in-charge of the police station, and therefore, in her submission, the same being mandatory part, has not been complied with and the accused would be entitled to the benefit thereof.
15. It appears to us that the said contention is also misconceived, inasmuch as, it is not the case of the accused-defence that at any point of time the seals applied were tampered in any manner after the materials were seized and seals were applied in the presence of panchas by PW-1 nor in the testimony of any of the witness, such as defence, has come out. At this stage, we may refer to the decision of the Apex Court in the case of Saikou Jabbi vs. State of Maharashtra, reported in (2004) 2 SCC 186, wherein, while considering the said aspects of compliance to the provisions of section 55 of the Act, the Apex Court observed at para-15, the relevant part reads as under:
"Even otherwise also, the evidence of I.O. about safe custody of the contraband articles has not been challenged or shaken in the cross-examination."
16. That being the position, we are not inclined to accept the plea that there was non-compliance to the requirement of sec. 55 of the Act. In the present case also, we find that when there is no defence about tampering of the seal or safe custody of the contraband articles and contention of alleged non-compliance of section 55 of the Act would lose its importance and would be inconsequential. Hence, the same does not deserve to be accepted.
17. Learned counsel for the appellant lastly contended that the default sentence imposed by the learned Special Judge is on higher side inasmuch as the learned Special Judge has imposed two years R/I for default in payment of fine. She submitted that as per the view taken by the Apex Court in the case of Shantilal vs. State of M.P., reported in (2007) 11 SCC 243, the default sentence was reduced to six month as against three years R/I imposed by the learned Sessions Judge in that case. Therefore, she submitted that the default sentence be reduced in the present case also to six months.
18. In normal circumstances, the imprisonment for default in payment of fine is the discretion of the court, which of course, is to be exercised with sound judicial principles. Normally, mitigating circumstances or factors about the financial conditions of the accused vis.a.vis the effect on the society are to be taken into consideration. It is true that few rupees were found from the possession of the accused, but at the same time, the aspect of having found in the possession of charas worth lacs of rupees also cannot be ignored. Therefore, we find that there cannot any hard and fast principles for consideration of such mitigating circumstances. However, we find the ends of justice would be met if the default sentence is reduced to one year S/I in place of two years R/I, as imposed by the learned Special Judge.
19. In view of the aforesaid observations and discussions, the impugned judgment and order of conviction and sentence dated 7.7.2007 passed by the learned Special Judge, Presiding Officer, Fast Track Court No. 9, Vadodara in NDPS Case No. 4/2005, convicting the appellant-accused for the offence under section 8(c), 20(b)(ii)(c) and 29 of the NDPS Act and sentencing him to undergo R/I for 10 years with fine of Rs. 1 lac, does not deserve to be interfered with and is hereby confirmed. However, two years R/I imposed by the learned Special Judge for default in payment of fine is hereby reduced to one year S/I.
20. Appeal is partly allowed to the aforesaid extent only.
[JAYANT PATEL, J.] [PARESH UPADHYAY, J.] mandora/ IZE=3 STYLE="font-size: 13pt">[JAYANT PATEL, J.] [PARESH UPADHYAY, J.] mandora/