(Per : MR.JUSTICE D.H.WAGHELA) 1. All the three appeals have arisen from the same judgment and order dated 2.06.2005 of learned Additional Sessions Judge, Rajkot, whereby one of the six persons accused of offences punishable under Sections 21, 29 and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') has been convicted for the offence under Section 21 of the Act and sentenced to the minimum prescribed punishment therefor, whereas the rest of the accused persons have been acquitted.
Criminal Appeal No.1619 of 2005 filed by the convicted accused was argued by Mr. V.H.Kanara, by way of legal aid, upon the original advocates appearing for the appellant having retired from the matter.
Criminal Appeal No.19 of 2006 is filed by the State for enhancement of punishment of the convicted accused and Criminal Appeal No.24 of 2006 is filed by the State to challenge acquittal of the remaining accused persons.
2. According to the prosecution case, the Superintendent of the Prohibition Wing and Police Inspector at Rajkot had, upon a secret information, raided the premises of original accused No.1 (the convicted appellant before us). The raid was conducted in company of other officers of the police staff including a lady Assistant Sub-Inspector and lady police constable. It was found at the address of the first accused viz. Ms. Yasminben that she, along with her minor daughter, was preparing to move on their scooter and upon their search, they were found to be carrying heroin weighing 715 gm 750 ml gm along with the instruments for weighing such material by small measures of one gram to two hundred grams. Therefore, after the necessary legal procedure, they were arrested and charge- sheeted alongwith the accused for offences punishable under Sections 21, 8 (c) and 29 of the Act and the daughter of the main accused person having been found to be a minor, her case was transferred to Juvenile Justice Board.
3. During the course of trial, prosecution examined 17 witnesses and produced number of documents. Some of the prosecution witnesses including the panch witnesses, being PW.1, PW.2, PW.4, PW.7, PW.8 and PW.14, turned hostile and did not support the prosecution case. However, by detailed deposition of PW.10 (Exh.95), PW.11 (Exh.110), PW.16 (Exh.124) and PW.17 (Exh.127), it was proved before the trial Court that the procedure under the provisions of sections 42 and 50 of the Act was duly complied, that 694 gm. and 460 mg. of heroin was recovered from the personal and conscious possession of the convicted appellant and it being an offence under section 21 of the Act, punishment was required to be imposed in accordance with section 21 of the Act. It was further found and held by the trial Court that there was no evidence against the other accused persons to implicate them into the offences with which they were charged.
4. After taking the Court through relevant part of the evidence on record, it was fairly conceded by learned A.P.P. that in fact there was no evidence against the respondents in Criminal Appeal No.24 of 2006. It was, however, submitted by him that the convicted appellant Ms.Yasminben was not only found and held to be possessing commercial quantity of heroin and the instruments for its sale, at the time of search, she was accompanied by her minor daughter from whose dress smaller quantity of the contraband was recovered. Therefore, evidently she was not only indulging in commercial activity of selling or distributing brown sugar, but deploying her daughter as a carrier and hence, the additional factors as enumerated in section 32-B were required to be considered for imposing higher than the minimum punishment. He submitted that the maximum punishment of 20 years of rigorous imprisonment and fine of rupees two lakhs was required to be imposed in the facts of the present case.
5. Learned counsel Mr.V.H.Kanara, appearing for the convicted accused, submitted that, although the mandatory provisions of sections 41, 42, 50, 55 and 57 of the Act appeared to have been complied on paper, most of the independent panch witnesses had not supported the case of the prosecution during trial. He pointed out from the deposition of PW.1 (Exh.71) that after turning hostile and denying all the suggestions made by the prosecution, he had deposed in para 17 of his deposition that the contraband material was, in fact, produced in the police station in separate plastic bags and then poured into one plastic bag and thereafter it was packed and tagged and the signatures thereon were obtained on the slips (Exhs.77 and 78). It was, on that basis, submitted that, as deposed by him in his cross-examination, the contraband was not seized as deposed by the investigating officers, but the panchnama was prepared in the police station and signature of the witness was obtained on the panchnama (Exh.72) at the police station, which falsified the case of the prosecution. He further submitted that as held by the Constitution Bench of the Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609], though section 50 gives an option to the empowered officer to take the suspect either before the nearest gazetted officer or the magistrate, endeavour should have been made to produce the suspect before the nearest magistrate to add legitimacy to the search proceeding, and benefit of doubt ought to have been given to the convicted appellant, according to his submission. As held by the Apex Court, it is imperative on the part of the officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a magistrate.
6. In view of the elaborate evidence adduced before the trial Court in the form of depositions of PWs 10, 11, 16 and 17 and the documents proved at Exhs. 104, 125 and 140, no reasonable doubt could be entertained about possession by the convict of commercial quantity of the contraband which was found and certified by the Forensic Science Laboratory to be heroin. As against the denials on oath by PW.1, there was overwhelming oral and documentary evidence in the form of detailed depositions of PWs. 10, 11, 15, 16 and 17, who were subjected to detailed cross-examination and no material contradiction was brought on record. In fact, they were found to be independent and reliable witnesses to whom no motive for falsely implicating the accused could be attributed. Therefore, the findings of fact recorded in the impugned judgment about compliance with the procedure requirements and about possession of the contraband material by the first accused were found to be reasonable and legal. It has also clearly come on record in the deposition of PW.10 that the accused was specifically asked as to whether she wanted to be taken to any gazetted officer or magistrate and she had clearly denied. There is also documentary evidence in the form of Exh.103 to prove compliance of the requirement of section 50 of the Act.
7. As for the quantum of punishment, it was seen from the record and fairly conceded by learned A.P.P. that no other offence or any other criminal antecedent was reported against the appellant and she appeared to have indulged in illicit activity for her livelihood after being separated from her husband. Having regard to the other ancillary circumstances of her being a woman shouldering the responsibility of maintaining a minor daughter and the submission that she was unlikely to be able to pay the amount of fine, resulting into additional period of rigorous imprisonment for two years, the appeal for enhancement of punishment is also required to be dismissed.
In view of the facts and circumstances discussed hereinabove, all the three appeals are dismissed.
(KMG Thilake) Sd/-
( D.H.Waghela, J.) Sd/ ( N.V.Anjaria, J.)