(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present appeal, the appellants have challenged the judgment and order dated 21.9.2004, passed by Additional Sessions Judge, Second Fast Track Court, Palanpur, in Special Case No. 152 of 2000 by which the appellants are convicted and sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1 lacs and in default to undergo simple imprisonment for two years for the offences punishable under Sections 17 read with 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) .
2 The brief facts of the prosecution case are as under:
That one Raghuvirsinh Mahavirsinh Bhadoriya who was working as PSI at Thara Police Station and was on duty with his staff, on 16.6.2000, another PSI one Mr. Amarsinh Bhikhusinh Bhimavat, who was working as Police Sub-Inspector, District Anti- wanted Squad, Palanpur, met him with his staff on a Highway. Bhadoriya along with another PSI Bhimavat, reached at Thara Police Station and at that time, he received an information that a jeep, having no number plate, is likely to come from village Deodar, having foreign liquor in it. Having received this information, he called two panchas and after preparing preliminary panchnama, Mr. Bhadoriya along with Anti-wanted Squad staff, went towards Radhanpur- Thara Highway. They were waiting in the area by hiding themselves behind bushes and were waiting for the jeep. At that time, they found that two persons walking on the road, having heavy articles in their hands, and on seeing their behaviour, the entire staff cordoned the said two persons and after verifying the bags, which they were carrying, it was found that they were carrying opium in their bags. After following the provisions under Section 50 of the NDPS Act about examining themselves before the Executive Magistrate, PSI Bhadoriya, asked his staff members to call for a shopkeeper having weighing scale at the place where accused were found with the contraband. The total weight of the contraband was about 11.350kgs. The samples of the said contraband were collected and after proper sealing of the packets in which the contraband was kept, the same was sent for analysis to Forensic Science Laboratory. Thereafter, Mr. Bhimavat, lodged a complaint with Thara Police Station about the incident. The PSO handed over the investigation to Mr. Bhadoriya. He recorded the statements of some witnesses and subsequently the investigation was handed over to one Mr. Ranjitsinh Hathisinh Jadeja, who after completing the investigation, submitted the charge sheet in the court of Special Judge, Banaskantha at Palanpur, which was examined and was ordered to be registered as Special Case No. 152 of 2000.
3 The learned Special Judge framed the charge at Exhibit-
7 against the present appellants for the offences under Section-17 read with Section-29 of the NDPS Act. The accused pleaded not guilty for the charges levelled against them and, therefore, the trial proceeded further.
4 The prosecution examined 11 witnesses and produced several documents on record and was successful in getting the conviction of the appellants – accused for the offences for which they were charged.
5 The learned Special Judge found that the accused persons were guilty of having committed the offences and convicted for the same and, ultimately, sentenced them, as stated here-in- above.
6 Mr. Hemang R. Raval, learned Advocate, appearing for the appellants, submitted that though the appellant No.1 Ratnabhai Khetabhai Rabari had died and appellant No.2 – Velaji Dharmaji Thakore had undergone the sentence and has been released from jail on 15.7.2012, he wants to assail the judgment of the Trial Court on several grounds since the appellants – accused were innocent persons and the conviction and sentence is a stigma on them. On merits, Mr. Raval submitted that the entire exercise undertaken by the police personnel, who found the appellants– accused with contraband, creates doubts in view of absence of any corroboration either from the panchas or from the shopkeeper who weighed the contraband. He has further submitted that panch witness Purabhai Kalyanbhai Harijan, PW-1, examined at Exhibit- 12, has stated that he was called at Thara Police Station at about 10.00 to 11.00 hours and he was asked to put his signatures on two-three pages. Similar is the case of another panch witness Vasudev Ambaram Prajapati, PW-2, examined at Exhibit-20. They have categorically stated in their depositions that they were not taken to any place and their signatures were obtained on the panchnama. However, if we peruse the panchnama at Exhibit-13, it appears that, the entire process of arresting of accused persons along with the contraband, weighing the same and putting seals etc. was undertaken on Radhanpur Highway. Similarly, the shopkeeper PW-3 Dilipbhai Chimanlal Khatri, examined at Exhibit- 24 who had weighed the contraband, deposed that he was called at Thara Police Station and the contraband was weighed at the police station. He has not supported the prosecution. He has also denied that any certificate of weighing the contraband has been issued by him. He submitted that in view of this factual aspect, the genesis of the entire case of the prosecution creates doubts. It becomes doubtful that, whatever, the documents the police officer had prepared and deposed before the court are true or not.
7. Mr. Neeraj Soni, learned APP, has produced the jail remarks sheet of the appellants. It is also brought to our notice by learned APP that the appellant No.1 Ratanbhai Khetabhai Rabari had expired on 27.4.2011 when he was undergoing the treatment at Civil Hospital and appellant No.2–Velaji Dharmaji Thakore has undergone the sentence and on completion of the sentence he has been released from jail on 15.9.2012. Since he had not paid the fine, he had to remain in jail for two more years though he had undergone the sentence of 10 years.
8 We have heard Mr. Hemang R. Raval, learned Advocate, appearing for the appellants and Mr. Neeraj B. Soni, learned APP, appearing for the respondent– State. We have examined the record and proceedings and have gone through the depositions of the witnesses. It is an admitted position that two Police Sub-Inspectors - one Mr.Amarsinh Bhikhusinh Bhimavat, who lodged the complaint at Exhibit-30 and another Mr. Raghuvirsinh Mahavirsinh Bhadoriya, were in the raiding party in which the appellants–accused were arrested. Both these witnesses, who are examined as PW-4 at Exhibit-29 and PW-10 at Exhibit-75 respectively, have categorically deposed before the court that the appellants – accused were found on Highway wherein two panchas were with him and who prepared the panchnama on Highway itself. The panchas have deposed that they were called at the police station and they put signatures on the readymade panchnamas prepared by the police personnel. Similarly, these two Police Sub-Inspectors have stated that the shopkeeper Dilipbhai Chimanlal Khatri, Exhibit-24, was called with his weighing scale at the place where the accused were found and the procedure of weighing the contraband was undertaken at that place. However, Dilipbhai Chimanlal Khatri, the shopkeeper, has deposed that he was called in the police station with the weighing scale and some articles were weighed by him. He has denied that part of the articles taken as sample was weighed by him. He has denied that he has given any certificate about the weight of the contraband and he was not aware about the contents of the written papers on which he had put his signatures. Though, this witness has been declared as hostile witness, the prosecution has miserably failed in establishing the genesis of the crime. The conduct of the Investigating Officer Mr. Raghuvirsinh Mahavirsinh Bhadoriya of not keeping any notes in the register about sending the samples, creates doubts. In his cross-examination, he has admitted that he has not investigated about the entry in the register that on which date the samples were sent for analysis to the Forensic Science Laboratory. Therefore, in our opinion, the prosecution has failed in establishing the entire procedure of arrest of the accused persons, weighing the contraband and sealing the same which are under cloud and therefore, the accused are entitled for the benefit of doubt and are required to be acquitted from the charges levelled against them.
9 In the result, the Appeal, qua, Appellant No.1– Ratnabhai Khetabhai Rabari shall stand abated as he had expired during the pendency of the Appeal. The appeal, qua, appellant No.
2-Velaji Dharmaji Thakore is allowed. The impugned judgment and order dated 21.9.2004, rendered in Special Case No. 152 of 2000, by the learned Additional Sessions Judge, Second Fast Track Court, Palanpur, recording the conviction of the appellant No.2 for the offence under Section-17 read with Section 29 of the NDPS Act and the sentence awarded to him is set aside and the appellant No.2 is acquitted of the charges levelled against him.
(A.L. DAVE, J.) (A.J.DESAI, J.) pnnair