(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appellants came to be convicted by Sessions Court, Dahod for offence punishable under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Substances Act, by judgment and order dated 21.04.2006 rendered in Special Case No.1 of 2005. They were sentenced to undergo rigorous imprisonment for ten years and fined to pay Rs.1 lakh each, in default, to undergo simple imprisonment for one year.
2. The case of the prosecution, in brief, is that the appellants were found to be in possession of 306.500 kilograms of poppy-straw on 17.10.2005 at about 10 am at Navagam in Jeep No.RJ-18-U-0237. As per the prosecution case, the police had arranged a watch at Navagam Cross Roads to look for smuggling of illicit liquor from neighbouring States. At that time, this jeep car came, wherefrom the aforesaid quantity of contraband was found. The vehicle was occupied by two persons, in addition to the driver. The contraband seeds were weighed at the spot by calling one Abdul Hakimbhai Gulabbhai Mahmmad Mansuri. Samples were drawn and sealing was done. Thereafter, samples were sent to FSL for chemical analysis. The said samples were certified by FSL to be of poppy-straw. Therefore, charge-sheet was filed and Special Case No.1 of 2005 was registered. Charge was framed at Exh.2, to which, all the three appellants pleaded not guilty and came to be tried. The trial Court found that the prosecution successfully proved the charges and therefore, recorded conviction. Hence, these appeals.
3. We have heard learned advocate Mr. Agrawal and Ms. Sagar for the appellants and learned APP Mr. Dabhi for the respondent – State.
4. We have examined record and proceedings in context of rival submissions.
5. Learned advocates for the appellants have raised large number of contentions, one of which is such that it goes to the root of the entire case and investigation and therefore, we propose only to deal with that aspect and not to deal with other contentions that have been raised before us.
6. Indisputably, as per prosecution case, the contraband was found in jeep car No.RJ-18-U-0237 which was intercepted at Navagam Cross Roads near Dahod. Witness Abdul Hakimbhai Gulabbhai Mahmmad Mansuri was summoned for weighing and he came to the spot and weighed the contraband, which was seized, by road side itself, where the vehicle was parked. This aspect is emerging from the panchnama of search and seizure at Exh.11. In this context, if the evidence of Abdul Hakimbhai Gulabbhai Mahmmad Mansuri is seen (Exh.8), he says that opium plants were brought to him on 17.10.2005 for weighing, in gunny bags, 22 to 23 in number, and the weight was found to be 306.500 kilograms. Then, in later part of his examination-in-chief, he himself says that the opium had not been brought to him, but he had gone to the police station for weighing along with scales and had done the weight. This witness has not been treated as hostile to prosecution. His cross-examination indicates that he resides near police chowky no.2 and is dealing in scrap and he is being summoned by police off and on.
7. The picture that emerges from above two pieces of evidence of the prosecution, even if taken at face value, is that as per the evidence of police officer, through whom panchnama (Exh.11), is proved, since the panchas did not support the prosecution, the weight was done on the spot, where the vehicle was intercepted at Navagam Cross Roads by the side of the road. There, after the weighing, samples were drawn and sealing was done. Against that, the evidence of witness Abdul Hakimbhai Gulabbhai Mahmmad Mansuri is that the weight was done by him at the police station. For this contradiction, prosecution has no explanation to offer. The resultant effect is that the entire search, seizure and investigation reel under clouds of doubt whether really such contraband was seized and weighed, as is claimed to have been done; whether the weight was done at the place of seizure; whether sealing was done at the place of seizure. If that was so, how can the witness say that the weight was done by him at the police station and at that point of time, he did not speak of any sealed muddamal having been weighed by him, then is it not that muddamal which was seized and sealed at the place of seizure viz., Navagam Cross Roads, the seal was opened and then the witness was called for weighing. All these factors render the prosecution case totally unreliable and conviction recorded by the trial Court cannot be confirmed.
8. In this set of circumstances, the appeals deserve to be allowed and the same are allowed. The judgment and order of conviction and sentence rendered by the learned Special Judge, Second Fast Track Court, Dahod on 21.04.2006 in Special Case No.1 of 2005 for the offence punishable under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Substances Act is hereby set aside. All the Appellants i.e. Bharatbhai Rupabhai Dehdha, Nathiabhai Alias Nabariabhai Limbabhai Garval and Ramsingbhai Gulabhai Katara are acquitted of the charges levelled against them. They shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to them.
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[A.L. Dave, J.] Sd/-
[A.J. Desai, J.] #MH Dave