1. The judgement and order dated 4th December, 1993 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.63/93 is subject matter of challenge in this appeal.
2. The charge against the accused was that on 5th December, 1992, at around 17.30 hours, the accused had kept with him 7850 grams of Ganja without any pass or permit at Kamela Darwaja, Chhatri Char Rasta, Ring Road area of Surat city and had, therefore, committed the offence punishable under section 8(c) read with section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”).
3. The prosecution case is that Shri N. S. Patel, Police Inspector, Traffic Branch, Surat city, along with other staff members, was carrying out checking at Kamela Darwaja Cross Roads, Surat. In the meanwhile, an auto-rickshaw was approaching from Koyali Khadi. Upon the said rickshaw reaching Kamela Darwaja Cross Roads, he and the policemen accompanying him stopped the same for the purpose of checking. An individual was sitting in the rickshaw with a leather bag and he appeared to be suspicious. Hence, they stopped the rickshaw and got it parked on the side. Two panchas were called. Upon asking the name of the rickshaw driver, he had disclosed that his name was Akbarkhan Mahetabkhan Pathan, resident of Surat. Upon asking the name of the person who was sitting in the back seat of the rickshaw with the leather bag, he stated that his name was Laxmanbhai Narsaiya Betmalla, resident of Madanturti, Andhra Pradesh.
Since the leather bag looked suspicious, the said individual was asked whether he would like to be searched in the presence of a higher police officer or a magistrate, whereupon, the said Laxmanbhai Narsaiya replied in the negative and said that they could search him and the bag. The leather bag had red, green and blue checks and had a chain. Upon opening the chain, it was found that the same contained crushed dried leaves and sticks. Upon smelling the substance, he and the accompanying policemen and the panchas were of the opinion that the same was Ganja (a narcotic substance), hence, Head Constable Dinesh Gurji was sent to call the Deputy Director, Forensic Science Laboratory, Surat. Head Constable Kesarisinh was sent to call a person with weighing scales to weigh the said muddamal. Police Constable Saiyed Khalil was sent to fetch a seal, lac, string as well as one fertilizer bag from the Salabatpura Police Station. Upon searching the person of Laxmanbhai Narsaiya, no incriminating substance was found. In the meanwhile, Senior Scientific Officer, Shri A. R. Vaghela reached there and he took out some of the dried leaves and sticks from the leather bag, checked the same and informed that the entire stock consisted of Ganja and opined that the same should be sent for further analysis to the Director, Forensic Science Laboratory, Ahmedabad.
4. In the meanwhile, Head Constable Kesarisinh came along with Asif Shaikh Ibrahim Shaikh together with weighing scales and weights. The bag filled with Ganja was weighed. Upon weighing the bag along with the Ganja, the total weight came to be approximately 7.800 kgs and the total stock was valued at Rs.3,905/-. Upon inquiring from the accused whether he had any pass or permit for possessing the Ganja, he had replied in the negative. Upon asking him as to from where he had obtained the Ganja and where he was to deliver it, he gave an evasive reply. Upon asking the auto-rickshaw driver about the accused and the narcotic substance, he stated that he had taken the passenger from Mithakhadi Ring Road, Kamela Darwaja in his rickshaw along with leather bag, but he did not know the contents thereof. He had assumed that the leather bag contained clothes and other articles and permitted him to sit in the rickshaw. The auto-rickshaw was thereafter handed over to the driver Akabar Khan.
5. In the meanwhile, Police Constable Saiyed Khalil brought the seal, lac, string and one plastic fertilizer bag from Salabatpura Police Station. Thereafter, the chain of the leather bag containing Ganja was closed. The said bag was kept inside the plastic bag and the mouth of the bag was stitched with the string and both the ends were tied together and the panchas put a slip bearing their signatures thereon after which, the seal of the Salabatpura police station was affixed on the same. A detailed panchnama was prepared for the purpose of investigation. A first information report was, accordingly, lodged against the respondent-accused for the offences punishable 8(c) and 20(b) of the NDPS Act which came to be registered at the Salabatpura Police Station. Upon culmination of the investigation, charge-sheet came to be submitted before the Sessions Court, Surat. Upon conclusion of the trial, the learned Additional Sessions Judge found that the prosecution had not established its case against the accused beyond reasonable doubt and acquitted him of the charges levelled against him.
6. Mr. K. P. Raval, learned Additional Public Prosecutor took the court through the depositions of the witnesses and the record and proceedings of the case. It was submitted that the prosecution had duly established that the Ganja recovered from the accused had been duly sealed in accordance with the procedure prescribed therefor and had thereafter been sent to the Forensic Science Laboratory (FSL) which had opined that the same was in fact Ganja, a narcotic substance. It was submitted that the witnesses have supported the prosecution case and have proved that the Ganja was recovered from the accused, and that what was recovered from the accused had been duly sealed and had been sent to the FSL. It was submitted that the seals which had been affixed at the time of the panchnama along with slips signed by the panchas were intact when the same were sent to the FSL. Under the circumstances, in the absence of any tampering with the slips and the seals, the learned Judge was not justified in holding that the prosecution had not proved that the very same muddamal which was been recovered from the accused, had, in fact, been sent to the FSL. It was submitted that during the course of the trial, which had clearly taken place after a considerable period of time, it was but natural that there may have been some minor discrepancies in the depositions of the witnesses, however, such minor discrepancies should not have been given undue weightage, as has been done by the learned Additional Sessions Judge, who had acquitted the accused mainly on the basis of minor inconsistencies in the depositions of the witnesses.
6.1 Referring to the panchnama which was drawn at the time when the muddamal goods were seized and sealed, it was pointed out that the same clearly shows that the leather bag containing Ganja was kept in a plastic bag and the mouth thereof was stitched and the both the ends were tied together after which, the panchas had put a slip with their signatures and the seal bearing the mark of the Salabatpura Police Station was affixed thereon. Thus, in the panchnama, there is no reference to any slips being kept inside the plastic bag. It was pointed out that the FSL record also indicates that what was received was a plastic bag with a leather bag containing Ganja inside it, and the seals on the plastic bag were intact. It was submitted that merely because one or two of the witnesses have stated that a slip had been put inside the plastic bag, is no reason to discard the testimonies of the other witnesses which find corroboration in the panchnama and the FSL record to the effect that the leather bag was put inside the plastic bag which was sealed from outside and the slips bearing the signatures of the panchas were affixed thereon. Under the circumstances, the learned Judge as not justified in recording that in view of the discrepancies in the depositions of the witnesses, it could not be believed that the very same muddamal had been sent to the FSL.
6.2 It was further submitted that the learned Judge has also given undue importance to the description of the plastic bag in which the leather bag containing Ganja was sealed. It was submitted that much significance cannot be attributed to the aspect as to whether the plastic bag was a fertilizer bag, a cement bag or a bag with the sign of Nirma Washing Powder, inasmuch as, all the witnesses have deposed that it was kept in plastic bag and it is nobody’s case that the outer bag was not a plastic bag. Under the circumstances, much stress ought not to have been laid on the fact that in the FSL record it has been stated that the plastic bag had the words “Nirma Washing Powder” written on it.
6.3 It was, accordingly, urged that in the absence of any findings recorded by the court to the effect that the seals which were affixed at the time when the panchnama was drawn, were tampered with, there was no justification in observing that the muddamal which had been forwarded to the FSL was not the very same muddamal which was recovered from the accused. It was submitted that by giving undue importance to minor inconsistencies, the learned Judge has held that the prosecution has not established the guilt of the accused beyond reasonable doubt. Under the circumstances, the impugned judgement and order of acquittal deserves to be quashed and set aside and the accused is required to be convicted for the charges levelled against him.
7 On the other hand, Mr. R. K. Trivedi, learned counsel for the respondent supported the impugned judgement by submitting that there are innumerable inconsistencies in the prosecution case which go to the root of the matter and raise a doubt as to whether the muddamal which was sent to the FSL for analysis was the very same muddamal which was alleged to have been recovered from the accused. It was submitted that two versions as regards the manner in which the muddamal was sealed have come on record. One version is that the a slip signed by the panchas had been kept inside the plastic bag and another slip had been affixed outside, whereas the other version is that the slip signed by the panchas was affixed only on the outer side of the bag. Under the circumstances, considering the fact that the two different versions are coming forth as regards the manner in which the muddamal was sealed, it would not be safe to hold that the muddamal which recovered from the accused was the very same muddamal that was sent to the FSL. It was pointed out that the FSL record shows that the leather bag containing Ganja was placed inside a white sealed minia (wax) bag bearing the label “Nirma Washing Powder”. It was submitted that in the panchnama as well as in the complaint and in the depositions of majority of the prosecution witnesses, no one has stated that the bag bearing the label “Nirma Washing Powder” which raises a doubt as to whether the muddamal which was sealed in the presence of the panchas was the very same muddamal which was sent to the FSL for analysis.
7.1 Inviting the attention of the court to the deposition of the prosecution witness No.8, Saiyadalil Abdulla, it was pointed out that the said witness had brought the bag from a provision store and he has described the said bag to bag‘a bag which was like fertilizer bag’ and not a bag having the label of “Nirma Washing Powder” thereon to submit that it is not possible to believe that such a noticeable thing could have been overlooked by all the witnesses. It was pointed out that while drawing the panchnama, the muddamal Ganja was weighed along with the bag and the weight was found to be 7.800 kgs, whereas the FSL has recorded that the net weight of the muddamal Ganja was 7.800 kgs. It was submitted that the leather bag containing Ganja would also have some weight of its own, which is likely to be considerable. Under the circumstances, the fact that the net weight of the Ganja without the bag was found to be 7.800 kgs by the FSL also raises a doubt as to whether the muddamal which was recovered from the accused, was the same muddamal which was sent for testing to the FSL. It was submitted that in the light of the material discrepancies in the testimonies of the witnesses as well as in the documentary evidence, the learned Additional Sessions Judge was justified in holding that the prosecution had not proved its case beyond reasonable doubt. Under the circumstances, the appeal being devoid of any merit deserves to be dismissed.
8. In the backdrop of the aforesaid facts and contentions, reference may be made to the depositions of the prosecution witnesses. PW-1, Yasin Ahmad Malek has been examined at exhibit-7. In his deposition, he has stated that a person was sitting in the rickshaw with a bag on his lap. The police officer asked them to open the bag and examine what was inside. The accused had opened the chain of the bag. The police officer told them to put a hand inside the bag and find out what was inside it. Yusufbhai put his hand inside the bag and took out something and it was found that there were dry leaves and stems inside the bag. He has further deposed that upon the policemen and others looking at the contents of the leather bag, it was found that it contained a substance which was narcotic in nature. Thereafter, they had waited for about twenty minutes. An officer came along with policeman on the motorcycle. The said officer took out the substance from the bag and said that the same was Ganja. Thereafter, a boy came along with handcart and weighing scales. The handcart also contained potatoes and onions. The police officer gave the bag to the cart owner for the purpose of weighing the same. He has stated that he does not remember the exact weight of the muddamal, but it weighed around 7 to 8 kgs. Thereafter, the said bag was kept inside the plastic sack. After that, the signatures of both the panchas were obtained. The same was tied along with the bag and a lac seal was applied thereon. In his cross-examination, it has come out that the task of putting the seal was done by the policemen and that the panchnama was also dictated by the police officer and that the panchas had not dictated the panchnama. In his cross-examination, he has further accepted that the plastic sack in which the bag was kept was not a sack having the words “Nirma Washing Powder” thereon.
9. In the panchnama which was drawn between 14.00 to 17.30 hours on 5.12.1992, it has been recorded that the bag which was seized from the accused was a leather bag with a chain and had red, green and blue checks. Upon weighing the Ganja in the bag at the site, the same weighed 7.800 kgs along with the bag. Thereafter, the leather bag was kept in a plastic fertilizer sack and both the ends of the mouth of the bag were stitched together and a slip with the signatures of the panchas was tied thereon and a seal bearing the mark of Salabatpura Police Station was affixed thereon and a detailed panchnama was recorded.
10. PW2-Nareshkumar Harjivandas Patel, who has been examined at exhibit-9, has deposed that at the relevant time, he was discharging duties in the Surat city, Traffic Branch. He has inter alia deposed that after the officer from the FSL came to the site he had examined the contents of the bag seized from the accused and had tested the same and had informed them that the crushed powder was Ganja and had further instructed them to send the entire muddamal to the FSL, Ahmedabad. In the meanwhile, a person with weighing scales also came there and the Ganja along with the bag was weighed and it was found to weigh 7.800 kgs. In the meanwhile, a constable arrived with the seal, lac, string and plastic bag. The leather bag containing the crushed substance was kept in the plastic bag. On the outer side of the leather bag and inside the plastic bag, a slip bearing the signatures of the panchas was kept. Thereafter, the plastic bag was stitched and the seal of the Salabatpura Police Station was affixed thereon. The second slip bearing the signatures of the panchas was tied with the plastic bag with a string and the seal was affixed thereon. In his cross-examination, he stated that he does not remember the name of the P.S.O. to whom the muddamal had been handed over and that no receipts had been issued after he handed over the muddamal. He has accepted that in the panchnama, it has been written that the muddamal had been packed in a plastic fertilizer bag. He has further stated that normally, such bags are used for fertilizers and hence, the same have been referred to as a fertilizer bag in the panchnama. He is not in a position to state as to whether the leather bag was packed in a bag meant for filling Nirma Powder. He has further admitted that he had got the seal affixed on the plastic bag through a policeman and that the same was a seal of Salabatpura Police Station. He has also admitted that he has not affixed his own personal seal on the muddamal. After reading the letters on the white plastic bag, he has stated that it is not a fertilizer bag.
11. PW-5-Aasat Shaikh Ibrahim Shaikh, a hawker, who had been called by Head Constable Kesarisinh for weighing the muddamal, has deposed that when he reached the spot, four or five policemen and a rickshawala were present. A rickshaw was standing there and a person was sitting in the rickshaw with a bag on his lap. The policeman had asked him to weigh the bag which was found to weigh 7 kilos 800 grams. Thereafter, the police had recorded his name and had told him that he should come to Salabatpura Police Station for recording his statement, where after he had left.
12. PW No.13 – Dineshbhai Gurjibhai Chaudhary, has been examined at exhibit-12. He has deposed that he had been sent to call an officer from the Laboratory. That no written yadi had been given to him, but oral instructions had been issued to him. Therefore, he had gone and called an officer from the Laboratory who had examined the substance in the accused’s bag and stated that the same was Ganja and was required to be sent to the Laboratory for analysis.
13. PW-6, Kesarisinh Jagabhai has been examined at exhibit-
15. He has stated that at the relevant time, he was working as a Head Constable in the Traffic Branch, Surat city and he was sent to call somebody who could weigh the muddamal. That a person with a handcart with potatoes and onions was coming from the side of Mithi Khadi. He told him to come along with him with the weights and weighing scales. The said person left the cart with his friend and came along with him with the weighing scales and weights. The person with the weighing scales weighed the Ganja along with the bag and the same came to be 7 kilos and 800 grams. He has deposed to the effect that thereafter, Police Constable Saiyed arrived there with a seal, lac, string and sack, and the bag which was in the custody of the accused was placed in the said bag and stitched with string. After stitching the same, a slip bearing the signatures of the panchas and the police inspector was placed thereon and the slip was tied with a string and thereafter, lac seal was affixed thereon. After the seal was affixed, a detailed panchnama was drawn. That the bag which was kept inside the sack did not bear any seal, nor was any slip bearing the signatures of the panchas placed inside the same.
14. PW7-Chimansinh Udesinh, who was a police constable in the Traffic Branch, Surat city has been examined at exhibit-16. He has deposed to the effect that after the proceedings of the panchnama were over, he, along with Police Inspector Shri Patel, the muddamal and the accused, had come to Salabatpura Police Station in the same rickshaw in which the accused had come. At Salabatpura Police Station, Shri Patel had lodged the first information report and the accused and the muddamal had been handed over to the P.S.O. of the said police station. He has further deposed that twenty minutes after the rickshaw was stopped, the FSL officers had arrived there. When the FSL officers arrived, the person with the weighing scales had already come, however, the police constable who had gone to fetch the lac, seal and the bag, had not yet come.
15. PW-8-Saiyadali Abdulla, who was working as a police constable in the Traffic Division, Surat city, at the relevant time, has been examined at exhibit-17. He was sent to fetch a seal, lac and string. He has deposed that he took a plastic fertilizer like bag from a provision store. When he came back, the FSL officers and the person with the weighing scales had already arrived there. He has deposed that after the bag was weighed by the person with the weighing scales, the police inspector closed the chain of the said bag and placed the same in the plastic bag that he had brought. A slip bearing the signatures of the panchas and police inspector was affixed on the plastic bag. Thereafter, the mouth of the plastic bag was stitched with string. A slip bearing signatures of the panchas and the police inspector was tied with string on the bag and thereafter, a lac seal of the Salabatpura Police Station was affixed thereon. In his cross-examination, it has been revealed that the panchnama had been dictated by P.I. Shri Patel. After the panchnama was over, he handed back the lac and the seal to the Salabatpura Police Station in respect of which, no receipt had been given to him.
16. PW9-Ganpatsinh Lakusinh Gohil, who, at the relevant time was discharging duties at Salabatpura Police Station, has been examined at exhibit-20. He has deposed to the effect that he was handed over a sealed cover and sealed muddamal bag on 6th December, 1992 by P.S.O. Shri Kansara and was instructed to deliver the same to the FSL, Ahmedabad. On the same day, he set out for Ahmedabad and reached there at 12 O’clock in the afternoon. He deposited the muddamal with the FSL on 7th December, 1992 in respect of which, a receipt was issued by the FSL. In his cross-examination, he has stated that he is not aware as to in whose custody the muddamal was kept till it was handed over to him. He has deposed that there was no slip bearing the signatures of the panchas on the muddamal.
17. PW-10, the Investigating Officer, Shri Bhupendra Jayantilal Kansara, has been examined at exhibit-22. In his cross-examination, he has admitted that he had taken charge at 22.00 hours on 05.12.1992. He has accepted that the muddamal had not been handed over to him, but the complainant had handed over the muddamal to the P.S.O. He has produced the report of the FSL as well as a communication acknowledging the receipt of the muddamal.
18. A perusal of the said communication, which is dated 19.12.1992, shows that the FSL had received a white minia (gunny) bag bearing a seal of Salabatpura Police Station. There was a sealed sample parcel. There was also a paper slip bearing signatures below the seal of the gunny/minia bag. The white sealed minia bag bearing the label ‘Nirma Washing Powder’contained a rexin bag containing a dry greenish substance said to be Ganja the net weight whereof was 7.800 grams. In the result of analysis, under the heading “Physical Examination”, against net weight, it is stated as 7.800 grams. The contents of the samples have been found to be Ganja.
19. PW-11-Mubarakbaig Nawabbaig Mirza, who at the relevant time was the P.S.O. of the Salabatpura Police Station, has been examined at exhibit-26. He has deposed to the effect that at 09.45 p.m., Traffic P.I. Shri Patel had come to get the first information report registered at Salabatpura Police Station. Along with the first information report, seizure panchnama, accused, description of identity, the report in respect of registration of vehicle as well as the muddamal, were handed over. He has further deposed that he had issued a receipt in terms of the panchnama. According to this witness the muddamal was in a sealed condition and had a slip bearing the signatures of two panchas and the police inspector. The muddamal was in a plastic bag bearing the words “Washing Powder” which read as “Nirma Washing Powder”. In his cross- examination, he has stated that he does not remember whether he has stated in the muddamal receipt that the words “Nirma Washing Powder” could be read on the bag. He has admitted that in the panchnama, a reference is made to a plastic bag. In his cross-examination, he has further stated that after taking over the custody of the muddamal, he had not handed over the same to the PSI Kansara and PSI Kansara had not recorded his statement. After the offence was registered, he had issued the muddamal receipt. He does not remember as to from whom he had taken over the charge on 5.12.1992. He has deposed that on 5.12.1992, a constable had not come and taken the seal of the Salabatpura Police Station seal from him. That on 5.12.1992, no police officer had taken lac, string or seal from him. He does not remember that on 5.12.1992, after he had taken charge, whether any lac, string or seal had been sent.
20. The defence has also examined two witnesses in support of its case. DW1-Chimanbhai Chhitubhai has been examined at exhibit-29. He has testified that an N.C. Complaint was lodged in respect of rickshaw No.GJ-5-6653 on 5.12.1992. DW2-the FSL Officer, Shri Ashokkumar Ramjibhai Vaghela, has been examined at exhibit-31. He has stated that on 5.12.1992, he had received a written yadi from the Traffic Branch. The police officer who had come with the yadi had come in a police jeep and that he had gone in the said jeep to Kamela Darwaja. The Investigating Officer Shri M. H. Patel had shown him the vegetative substance, of which he had made preliminary examination. When he went there, the vegetative substance was filled in a bag. The Investigating Officer opened the bag and showed him the vegetative substances inside it. The bag was in the custody of the Investigating Officer. He has further deposed that he had no knowledge as to from whom the bag had been seized. The Investigating Officer had not shown him the person from whom the bag had been seized. He has also deposed that he had reached the place where the vegetative substance was examined at 04:45 hours and had stayed there till 05:15 hours. On 5.12.1992, he had received oral instructions at 04:30 hours that he was required to go for inspection. On 5.12.1992, he was in his office from 02:00 hours till 04:30 hours and that during that period, he had not left his office. In his cross-examination, he has produced the yadi which was issued to him by the Investigating Officer at exhibit- 32.
21. From the evidence which has come on record as discussed hereinabove, it appears that there are two versions coming on record with regard to the manner in which the muddamal Ganja had been sealed. The panch, the panchnama as well as most of the witnesses say that the leather bag containing the muddamal was kept inside a white plastic bag which was then stitched from outside and a slip bearing the signatures of the panchas and the Investigating Officer was affixed thereon and thereafter, the bag was sealed. However, PW-2, Nareshkumar H. Patel has deposed to the effect that the leather bag along with crushed leaves and stems (the muddamal) was kept inside a plastic bag. Outside the leather bag and inside the plastic bag, a slip bearing the signatures of the panchas was kept. Thereafter, the mouth of the bag was stitched and thereafter, a lac seal of Salabatpura Police Station was affixed thereon. That the slip bearing the signatures of the panchas was tied on the plastic bag and a seal was affixed thereon. Similarly, PW8-Saiyed Ali has also deposed to the effect that after closing the chain of the leather bag, the same was kept in a plastic bag. Inside the plastic bag, a slip bearing the signatures of the panchas and the police inspector was kept. Thereafter, the plastic bag was stitched with a string and a slip bearing signatures of the panchas and the police inspector was tied thereon and thereafter, a lac seal of Salabatpura Police Station was affixed thereon.
22. Thus, there is a material discrepancy in the evidence which has come on record as noted hereinabove, inasmuch as, two of the witnesses, more particularly the witness who had in fact placed the leather bag inside the plastic bag has stated that outside the leather bag and inside the plastic bag, a slip bearing the signatures of the panchas had been placed. A perusal of the report of the Forensic Science Laboratory which bears the description of the muddamal which was sent to it shows that a slip bearing the signatures of the panchas was found below the seal of the white sealed minia bag. Thus, the bag that was sent to the FSL did not have any slip inside the plastic bag and outside the leather bag which raises a doubt as to whether the same bag which was sealed in the presence of the panchas had been sent to the FSL for analysis.
23. Next it may be noted that in the FSL report the muddamal received by the FSL for analysis is described as: The white sealed Minia Bag labelled as Nirma Washing Powder contained a Rexin Bag having dry greenish material said to be Ganja Net Weight 7.800 gm.” However, a perusal of the depositions of the witnesses referred to hereinabove shows that none of the witnesses except for PW-11, Mubarakbaig, PSO, Salabatpura Police Station, has stated that the white plastic bag was labelled as Nirma Washing Powder. The testimonies of all the other witnesses consistently show that each of them have deposed that it was a white fertilizer bag or a white cement bag. None of the witnesses have stated that the bag was labelled as Nirma Washing Powder. Not only that, even in the panchnama where the muddamal has been described, there is no reference to any such labelling on the plastic bag. It may be noted that insofar as the leather bag containing Ganja is concerned, the same has been properly described as a leather bag with a chain having red, green and blue checks. Thus, it is not as if in the panchnama, the bags have been referred to merely as a leather bag or a plastic bag. Insofar as the leather bag is concerned, the same has been described not only as a leather bag, but has also been described in terms of its colour and design. Under such circumstances, it is difficult to believe that if the white plastic bag had the words “Nirma Washing Powder” printed on it, the same would not be mentioned in the panchnama. However, the muddamal which was received by the FSL for the purpose of analysis was delivered in a sealed bag which was labelled as Nirma Washing Powder. Thus, there is an apparent discrepancy in the description of the muddamal which was sealed while drawing the panchnama and the description of the muddamal which was sent to the FSL for testing.
24. Another significant fact is that all the witnesses have consistently deposed to the effect that the leather bag along with Ganja weighed 7.800 grams. However, the FSL report indicates that the net weight of the Ganja was 7.800 grams. Under the circumstances, the learned counsel for the respondent is justified in contending that there was a considerable discrepancy in the weight of the Ganja inasmuch as, though while drawing the panchnama, the weight of the Ganja along with the leather bag was 7.800 grams, in the FSL report, the net weight of the Ganja is 7.800 grams. It cannot be gainsaid that the leather bag, in which the Ganja was kept, would also have some weight of its own. Under the circumstances, the prosecution was required to explain as to how the net weight of Ganja turned out to be 7.800 grams when weighed by the FSL though when it was weighed at the time of drawing the panchnama, the same weighed 7.800 grams along with the bag. Therefore, apparently, the quantity of Ganja which was sent to the FSL was more than the quantity which was recovered from the accused.
25. Another notable aspect of the matter is that though Ganpatsinh L. Gohil who had been sent to deliver the muddamal bag to the FSL at Ahmedabad on 6.12.1992, he reached Ahmedabad at 12 O’clock in the evening and the muddamal was delivered to the FSL only on 7.12.1992. Nothing has been brought on record as to why the same came to be delivered on the next day and as to in whose custody, the same remained for the entire day.
26. Thus, in the light of the overall evidence which has come on record, it is apparent that there are various material inconsistencies in the prosecution case inasmuch as, two witnesses, have deposed to the effect that a slip bearing the signatures of the panchas was kept inside the plastic bag and outside the leather bag after which the plastic bag was stitched, and another slip bearing the signatures of the panchas and the Investigating Officer was tied thereon, on which a seal of Salabatpura Police Station was affixed, whereas, in the panchnama as well as the depositions of the other witnesses, there is no reference to any slip being placed inside the plastic bag. Similarly, the report of the FSL also does not indicate any slip having been found inside the plastic bag. Thus, in the light of the discrepancies in the depositions of the witnesses, more particularly when the very witness who has placed the leather bag inside the plastic bag has stated that a slip bearing the signatures of the panchas was placed inside the plastic bag, it is apparent that the prosecution has not proved beyond reasonable doubt that the plastic bag which was sent to the FSL, was the same plastic bag which was sealed when the panchnama was drawn. Besides, as noticed earlier, the bag which was sent to the FSL had the words “Nirma Washing Powder” printed on it, whereas none of the witnesses have deposed that there were any such words printed on the white plastic bag in which the leather bag was kept. The sole witness who says so is PW-11 Mubarakbaig Navabbaig Mirza (exhibit-26), who has deposed that the muddamal was kept in plastic bag with the words “Nirma Washing Powder” written thereon. He, however, does not remember as to whether in the muddamal receipt he has stated that the words “Nirma Washing Powder” were written thereon. The learned Additional Sessions Judge has found that the fact regarding the plastic bag having the words “Nirma Washing Powder” printed on it, is an improvement made by the said witness only with a view to strengthen the prosecution case. Moreover, there is also a discrepancy as regards the weight of the muddamal, inasmuch as, though at the time of drawing the panchnama, the leather bag along with the Ganja was found to weigh 7,800 grams, in the FSL report, the net weight of Ganja is found to be 7,800 grams.
27. On behalf of the prosecution, the learned Additional Public Prosecutor has vehemently argued that the seals on the muddamal which was sent to the FSL were found to be intact and, therefore, it cannot be said that the sample was tampered with. However, there is nothing on record to indicate as to on what basis the FSL could have identified that the seals which were affixed on the muddamal were the same seals which had been affixed on the muddamal at the time when the panchnama was drawn. Under the circumstances, in the light of the discrepancies which have come on record, which cannot be said to be in the nature of minor inconsistencies, it is doubtful as to whether the muddamal which was sent for analysis to the FSL, was the very same muddamal which was recovered from the accused. It is in the light of the above referred discrepancies which have come on record that the learned Additional Sessions Judge has found that it cannot be said that the prosecution has proved its case against the respondent beyond reasonable doubt.
28. In view of the above discussion, having regard to the inconsistencies found in the prosecution case, more particularly the discrepancies in the description of the muddamal when the panchnama came to be drawn and the description of the muddamal which was received by the FSL, it cannot be said that the prosecution has established its case against the accused beyond reasonable doubt.
29. For the afore-stated reasons, this court is in agreement with the view adopted by the learned Additional Sessions Judge and does not find any reason to take a different view. The appeal, therefore, fails and is, accordingly, dismissed.
Record & Proceedings to be sent back forthwith.
(HARSHA DEVANI, J.) parmar*