(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and Order passed by the learned Sessions Judge in NDPS Case No.15/05, whereby the learned Judge has convicted the appellantaccused for the offence under section 8(c) read with section 20(b) (2) of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as “the Act”) and has imposed sentence of 10 years RI with the fine of Rs.1 lakh and further 1 year RI for default in payment of fine.
2. As per the prosecution case, when the complainant S.G. Yadav, p.w.1 was in the prohibition station of south division at Surat, on 14.05.2005, at about 19.00 hours, he received an information that Vishnubhai Maheshwari Prasad Dube who was residing in one room amongst other rooms belonging to Gangaram Pal located at Plot No.92, Indiranagar Ganeshnagar, Pandesara was selling ganja illegally and at present in his possession there was a stock of ganja. Therefore, he recorded the information in the police diary and intimated his superior and further he had instructed his subordinate to call for panchas and thereafter, he made an arrangement for raiding of the place. When he reached to the place in presence of panchas, Vishnubhai Maheshwari Prasad Dube, accused herein, was found in one room which was open and he identified himself as Vishnubhai Maheshwari Prasad Dube.
The complainant introduced himself and served the order under section 42 of the Act and gave the option if the accused was desirous to have the search in presence of any other gazetted officer or magistrate, but the said option was not exercised and thereafter, the search was made of the room and it was found that three plastic bags were there and the weighing scales were also there. The instructions were given to the scientific officer for preliminary testing and the person for weighing was also called for. It was found on the preliminary testing that the material was ganja and accused had no permit with him. The material was weighed and it was found that total weight was 30 kg. The samples were taken and sealed and the remaining materials were also sealed. The panchnama was prepared and thereafter, the complaint was filed (exhibit 16) with South Division (Prohibition), Surat City Police Station.
3. The complaint was further investigated by the police and ultimately, the chargesheet was filed and the case was thereafter committed to the Special Court being Special NDPS Case No.15/05. The prosecution in order to prove the guilt of the accused, examined 9 witnesses, the details of whom are mentioned at paragraph 5 of the judgment of the learned Judge. The prosecution also produced the documentary evidence of 23 documents, the details of which are mentioned by the learned Judge at paragraph 6 of the judgement.
4. The learned Judge thereafter recorded the statement of the accused under section 313 of the Cr.P.C. wherein the accused denied the evidence against him and in his further statement, he stated that he is innocent and police has filed a false case against him and he is a very poor person and his parents are aged and he is the only person maintaining the family and therefore, mercy was prayed. The learned Special Judge thereafter heard the prosecution and found that the prosecution has been able to prove the case against the accused and held the accused guilty for the charged offences. The learned Judge thereafter heard the prosecution and the accused for the sentence and thereafter imposed sentence as referred to hereinabove. Under these circumstances, the present appeal before this Court.
5. The learned counsel appearing for both the sides have taken us to the entire evidence, oral as well as documentary. We have also considered the judgment and the reasons recorded by the learned Judge. We have heard Mr.Baghel, learned counsel appearing for the appellantaccused and Mr.Pandya, learned APP for the State.
6. As regards the oral and documentary evidence led on behalf of the prosecution is concerned, we find that the prosecution has been successful in proving the case to the extent that the raid was carried out at the time and the place and ganja in three bags, total weighing 30 kg was found from the room. The prosecution has also been able to prove that the accused was present at the room. The material found was ganja as per the FSL report.
7. However, two important aspect deserves to be considered so as to conclude that the prosecution has been able to prove the case successfully against the accused. One is for compliance to proviso to section 42 of the Act and another for conscious possession of the accused of the material found.
8. Section 42 of the Act for ready reference reads as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and subset,
(a) Enter into and search any such building, conveyance or place;
(b) In case of resistance, break open any door and remove any obstacle to such entry;
(c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) Detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventytwo hours send a copy thereof to his immediate official superior.
The aforesaid shows that entry to any building or conveyance or enclosed place may be made by any officer so specified between sunrise and sunset. But the proviso makes it clear that if the officer has reason to believe that a search warrant or authorisation cannot be obtained, he may enter and search the building, conveyance or enclosed place at any time between sunset and sunrise, but it is required for him to record the grounds of his belief. Thereafter only, entry can be made between sunset and sunrise. It is in this light of the requirement of the proviso, we have to further consider the matter.
9. As per the evidence of p.w.1, exhibit 7, he received the information at 19.00 hours (which would be 7 pm) and entry no.150 is made in the station diary for such purpose. When he left the police station for raiding of the premises, as per his testimony, it was 20.00 hours and for such purpose the entry no.16 is made in the station diary. The preliminary panchnama is prepared on 20.05 hours (08.05 pm) and thereafter they have proceeded to the raiding place and the panchnama is completed at 24.00 hours, i.e. 12 'O clock at night. If the aforesaid timings are taken into consideration, it is clear that entry at the place which was room in the present case for search was in any case after 20.00 hours (8 'O clock night) that would be after sunset and before sunrise. Therefore, the above referred proviso of section 42 shall be attracted.
10. The next aspect is as to whether there is any compliance to the proviso of section 42 of the Act or not.
11. The learned APP made an attempt to contend that in the report made to the superior officer by the raiding officer, exhibit 18, it has been stated that if there is delay, mudammal may be destroyed and therefore, actions were initiated immediately and therefore, the learned APP contended that the same be treated as sufficient compliance to the proviso to section 42 of the Act.
12. However, the relevant aspect is that as per the requirement of the proviso, the officer has to record the reason that if the action is immediately not taken, there may be chances of concealment of the evidence or facility for escaping of the offender. Such ground is non existent even in the document at exhibit 18. Further, the entry made in the station diary, exhibit 8, which came on evidence through the testimony of p.w.1 – complainant Shri Yadav, there is not a whisper for such purpose showing that entry is required to be made otherwise there may be concealment of the material or the accused may escape or otherwise. Even in the evidence of the raiding officer, p.w.1complainant, there is no whisper about the reason recorded or otherwise for his entry to the place which was room between sunset and sunrise. Under these circumstances, we find that there is a clear noncompliance to the proviso to section 42 of the Act for raiding the place, which was buildingroom between sunset and sunrise.
13. At this stage, we may refer to the decision of the Apex Court in the case of Chunna alias Mehtab Vs. State of MP 2002(9) SCC 363 wherein the Apex Court found that as the entry was made between sunset and sunrise at 3.00 AM, the proviso to section 42 of the Act was applicable and before effecting search, neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if the opportunity for obtaining warrant is accorded, the evidence will escape and consequently, the Apex Court found that the trial stood vitiated and the appeal against conviction was allowed.
14. Mr.Pandya, learned APP relied upon the decision of this Court in the case of Jenaben @ Jenamben Rajakbhai Ismail v. State of Gujarat reported at 2008(2) GLR 943 and contended that if necessary intimation was given to the incharge of the police control room that urgent steps were required to be taken, the same could be said as sufficient compliance to proviso to section 42 of the Act. The fact of the said case recorded in para 6 shows that there was clear intimation by the raiding officer that if the raid was not carried out at the earliest and things would not be investigated immediately, then the brown sugar packets may be disposed of and therefore, the Court found that there was compliance to the requirement. In our view the facts of that case cannot be fully equated with the facts of the present case and there is no entry in the station diary for such purpose in the present case. In any event, in view of the aforesaid decision of the Apex Court in the case of Chunna alias Mehtab (supra), we find that in the present case, no ground is stated to have been recorded as per the requirement of the proviso to section 42. Secondly, it can be said that the trial stood vitiated as held by the Apex Court in the case of Chunna alias Mehtab (supra).
15. On the aspect for conscious possession, we may refer to the decision of this Court in the case of Ibrahim @ Gafo Ismailbhai Tarakwadia Vs. State of Gujarat in Criminal Appeal No.237/09 decided on 01.02.2012 wherein this Court had an occasion to consider the obligation on the part of the prosecution to discharge the burden for proving the conscious possession after considering the case of Noor Aga Vs. State of Punjab (2008) 16 SCC 417 and it was observed by this Court in the said decision at paragraphs 8, 9 and 10 as under:
“8. We may first refer to the decision of the Apex Court in the case of Noor Aga Vs. State of Punjab (2008) 16 SCC 417, wherein the Apex Court had an occasion to examine the constitutional validity of sections 35 and 54 of the NDPS Act and while upholding the constitutional validity, it was observed by the Apex Court at paras 58 and 59 as under:
“58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”
(Emphasis supplied) Thereafter, at paragraph 62, it was observed by the Apex Court that “In India the statute must not only pass the test of reasonableness as contained in Article 14 of the Constitution of India but also the `liberty' clause contained in Article 21 of the Constitution of India”.
9. Once again, the incidental aspects for the obligation upon the prosecution to prove the case and the burden upon the accused to prove otherwise came to be considered by the Apex Court in the case of Bhola Singh Vs. State of Punjab reported at 2011(11) SCC 653 and the Apex Court at para 10 observed as under:
“10. While dealing with the question of possession in terms of Section 54 of the Act and the presumption raised under Section 35, this Court in Noor Aga vs. State of Punjab and Anr. (2008) 16 SCC 417 while upholding the constitutional validity of Section 35 observed that as this Section imposed a heavy reverse burden on an accused, the condition for the applicability of this and other related sections would have to be spelt out on facts and it was only after the prosecution had discharged the initial burden to prove the foundational facts that Section 35 would come in to play.”
10. The aforesaid shows that it is only after the prosecution has discharged its initial burden to prove the foundational facts that section 35 of the Act would come into play, the reverse burden upon the accused would start. Under the circumstances, we need to examine as to whether the initial burden has been properly discharged by the prosecution or not? It is only thereafter, we may be required to examine whether the accused has discharged the reverse burden of making out his case or not.”
16. It is in this light of the legal position, we have to further examine as to whether the initial burden has been properly discharged by the prosecution or not.
17. The evidence of the witnesses examined by the prosecution shows that the accused was present in the room. But the said aspect if considered with the testimony of Raghuvirsinh, p.w.8, who investigated into the complaint shows that the statement of the owner Ranjanben Gangaram was recorded and it was verified by him that one room was rented to the accused and xerox of light bill were also received, but no evidence whatsoever has been laid by the prosecution either of landlady Ranjanben Gangaram nor any document of light bill on the name of the accused was produced. It further appears that as per Raghuvirsinh, p.w.8, exhibit 30, the statement of the adjoining persons were also recorded but, unfortunately, not a single neighbour has been examined by the prosecution to show that the room was in possession of the accused. One LIC policy was also produced in the evidence by this witness, p.w.8 on the name of the accused and the same was accepted at Exh.36 but the address shown in the said policy was Tulsi Restaurant, Ganesh Nagar, Pandesara, G.I.D.C., Surat and not the place at which the raid was carried out or the room concerned. Under these circumstances, we find that the prosecution has miserably failed to discharge the initial burden in proving the conscious possession of the premises/room which was raided and where ganja was found.
18. At this stage, we may refer to the decision of the Apex Court in the case of State of Punjab Vs.
prosecution that the room was under the control of the accused and therefore, consequently, the High Court had acquitted the accused and the observations of the High Court was taken note of by the Apex Court that the drug peddlers who are corroding the health of the nationare allowed to go scotfree because of ineffective investigation and for not collecting evidence to secure their
19. Under the circumstances, even if the case being so serious where huge quantity of ganja was found, on account of either no proper investigation or no proper material led before the Court, the real offender would go scotfree. In our view, on both the aspects, for non compliance of the proviso to section 42 as well as on the aspects of not discharging of initial burden by the prosecution for showing conscious possession of the room at which the ganja was found, the guilt and conviction as recorded by the learned Special Judge cannot be maintained and consequently, the benefit would go to the accused.
20. Hence, the judgment and the order passed by the learned Sessions Judge for holding the accused guilty for the offence and for imposing sentence are hereby quashed and set aside.
21. The appeal is allowed accordingly. The appellant be set to liberty forthwith unless his presence is required for any other lawful purpose.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy