IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 926 of 1990
For Approval and Signature:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI HONOURABLE MR.JUSTICE G.B.SHAH
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT - Appellant(s) Versus
SHIVNARESH PRUTHVINATH TRIVEDI & 1 - Opponent(s)
========================================================= Appearance :
MR LR PUJARI, ADDITIONAL PUBLIC PROSECUTOR for Appellant(s) : 1, RULE SERVED BY DS for Opponent(s) : 1, MR BP DALAL for Opponent(s) : 1, MR AM PAREKH for Opponent(s) : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 15/02/2012
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present appeal is filed by the State of Gujarat under Section 378 of the Criminal Procedure Code against judgment and order of acquittal dated 12.07.1990 passed by the learned Additional Sessions Judge, Jamnagar in Special Criminal Case No.1 of 1989, whereby the learned Additional Sessions Judge was pleased to record acquittal of the accused for an offence under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, “the NDPS Act”). The accused, two in number, were charged for an offence under Clause-(ii)of sub-section (b) of Section 20 read with Section 29 of the NDPS Act.
2. This Court is conscious that this is an appeal against an order of acquittal and the Hon'ble the Apex Court has reiterated scope and ambit of appeal against acquittal under Section 378 of the Code of Criminal Procedure. The Hon'ble the Apex Court in the case of Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, reported in (1973) 2 SCC 793 = AIR 1973 SC 2622 had an occasion to observe as under:-
“5. Before dealing with the merits of the contentions, we may perhaps make a few preliminary remarks provoked by the situation presented by this case. An appellant aggrieved by the overturning of his acquittal deserves the final court's deeper concern on fundamental principles of criminal justice. The present accused, who have suffered such a fate, have hopefully appealed to us for a loaded approach against guilt in consonance with the initial innocence presumed in their favour fortified by the acquittal that followed. We are clearly in agreement with this noble proposition, stated in American Jurisprudence at one time (not now, though) as implied in the rule against double jeopardy, in the British system as a branch of the benefit of reasonable doubt doctrine and in our own on the more logical, socially relevant and modern basis, that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such a course. In India it is not a jurisdictional limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below.
In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court's judgment survives this exacting standard.”
(emphasis supplied)
2.1 The Hon'ble the Apex Court in the said judgment more elaborately laid down the guidelines to be followed by the appellate Court (in the present case the High Court) in the matters, particularly appeals against an order of acquittal. In para-6, the Hon'ble the Apex Court observed as under:-
“6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author (Glanville Williams in 'Proof of Guilt') has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...". In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents. We have adopted these cautious in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.”(emphasis supplied)
2.2 The Hon'ble the Apex Court has very succinctly put desirability of striking a balance between the two that, 'thousand guilty men may go but one innocent martyr shall not suffer' and the, 'evil of acquitting a guilty person lightheartedly' as learned Author-Glanville Williams has observed in his book, 'Proof of Guilt' and the apprehension expressed by the Hon'ble the Apex Court that, 'If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty'.
2.3 The Hon'ble the Apex Court has further observed in para-7 as under:-
“7. This Court had ever since its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The, Privy Council in Sheo Swarup v. King Emperor 61 Ind App. 398 = (AIR 1934 P.C. 227(2) negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under s. 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". He further pointed out at p. 404 that, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120 = (AIR 1961 SC 715) after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup's case and held that they afforded a correct guide for the appellate court's approach to a case against an order of acquittal. It was again pointed out by Das Gupta, J. delivering the judgment of five Judges in Harbans Singh and Another v. State of Pubjab (1962) Supp.1 SCR 104 = (AIR 1962 SC 439).
"In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on 'compelling and substantial reasons' and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State, (1952) SCR 193 = (AIR 1952 SC 52) Ajmer Singh v. State of Punjab, (1953) S.C.R.418= (AIR 1953 SC 76) Puran v. State of Punjab, A.I.R. 1953 S.C. 459). The use of the words 'compelling reasons' embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words 'compelling reasons'. In later years the Court has often avoided emphasis on 'compelling reasons' but nonetheless adhered to the' view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. The State of Madhya Pradesh, Criminal Appeal No.178 of 1959 decided on 18-11-1960 (SC), Ashrafkha Haibatkha Pathan v. The State of Bombay, Criminal Appeal No.38 of 1960 decided on 14-12-1960 (SC).) "...... On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reason on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
(emphasis supplied)
3. The case of the prosecution is that complainant of this case–Head Constable Ramjubha Dolubha received an information on 29.09.1988 that accused No.1–Shivnaresh Pruthvinath is keeping 'charas' in Air Force area at Jamnagar and is selling the same near Woolen Mill after bringing the same out, from Air Force area. On receiving definite information, a bogus customer, viz. one Harendra Harji was called and was asked to enter into a transaction with said accused No.1. Similarly, two panchas, (1) Ramubha Harubha Jadeja and (2) Abdul Razak Mamad Shaikh were also called. They were explained that Harendra Harji (bogus customer), is to enter into a transaction of purchase of 'charas' from accused No.1. Said Harendra Harji entered into a transaction for purchase of 'charas' weighing 2 kg. for a sum of Rs.4,000/- and accordingly, 'charas' was to be delivered by accused No.1 near old 'Jakatnaka' (Octrio Point). It was agreed that the same will be delivered to Harendra Harji for a consideration of Rs.4,000/-. After the said transaction was entered into in presence of panchas and Harendra Harji, preliminary panchnama Exh.21 was drawn. Thereafter, Head Constable Ramjubha Dolubha(complainant), Harendra Harji (bogus customer) and panchas along with police staff went near 'Jakatnaka' on 29.09.1988 at about 02.00-02.30 pm. The police personnel were in civil dress. The panchas and police personnel hide themselves in the vicinity and Harendra Harji (bogus customer) was kept standing on the road. After some time, at around 03.45 pm, accused No.1 came with his scooter bearing registration No.UPV-994 and stopped his scooter near Harendra Harji and by opening right side flap of scooter, took out a yellow coloured bag wherein, substance wrapped was being delivered to Harendra Harji. At that point of time, police personnel caught hold of him in presence of panchas. On examining said substance, the same was felt to be 'charas'. On inquiry, accused disclosed his name to be Shivnaresh Pruthvinath Dwivedi and also told that he is serving in Air Force. The substance found from him was 18 long cylindrical pieces of 'charas'. The accused did not had any pass or permit for possessing the same. The said 'charas' on weighing found to be 1 kg & 920 gm. As all 18 pieces were similar and in the same proportion, complainant took a sample of approximately 25 gm. and placed the same in a plastic bag. After keeping the sample in the plastic bag, the same was wrapped. A slip containing signatures of panchas was placed and string was applied and on that, seal of Police Sub Inspector, LCB, Jamnagar was applied and was taken for investigation. Similarly, remaining quantity of 'charas' was also wrapped in a plastic bag and the same was taken for investigation after sealing. As the scooter of the accused bearing registration No.UPV-994 was used for transportation of 'charas', the same was also taken possession of for investigation and accused was detained at 04.45 pm.
3.1 As accused No.1 by possessing 'charas' and by selling the same committed offence under Section 20 read with Section 29 of the NDPS Act, Head Constable Ramjubha Dolubha Jadeja-complainant filed a complaint at Jamnagar City 'B' Division Police Station on behalf of the Government.
3.2 During investigation, complainant came to know that this quantity of 'charas' was supplied to accused No.1 by one Warrant Officer named Virendrasinh Pruthvisinh, who is accused No.2 in the present case. The complainant, therefore, along with ASP Mr.Zha and other members of police staff around 07.00 pm in the eve on the same day (29.09.1988) had gone to the office of Air Force. There, they obtained warrant-Exh.17 from the Station Commander to search house of accused No.2. Thereafter, quarter of accused No.2 situated in Air Force area was searched in presence of officers of the Air Force Shri Nagendrasinh Harimangalsinh, Shri M.W.Khirwal, Flying Officers Shri Roy and Warrant Officer Shri Nair.
3.3 During search of quarter of accused No.2, near gas cylinder 10 full size (Big) pieces, 8 small size pieces from behind 'masala' box, 2 cylindrical 'latas' (slabs) and from bathroom, 13 'latas' (slabs) were found. Thus, from the quarter of accused No.2, total 3 kg. and 370 gm. 'charas' was found. For possessing the said 'charas', accused No.2 did not have any pass or permit. Therefore, from the said quantity, for sample, small quantity of 'charas' was taken out separate, was packed and taken. Similarly, remaining quantity of 'charas' was also packed and taken for investigation. This was recorded in Rojkam-Exh.18 prepared at the spot. Accused No.2 was arrested and along with quantity of 'charas' and sample packed, he was handed over to Jamnagar City 'B' Division Police Station. The sample packets were sent to the office of Chemical Analyzer, Junagadh through LCB. From the report of the Chemical Analyzer, it was learnt that the sample which was sent for analysis was 'charas' and therefore, after completing investigation, police filed charge sheet against the accused in the Court of learned Chief Judicial Magistrate, Jamnagar, on 14.12.1988. As the case was triable by the Court of Sessions, learned Chief Judicial Magistrate Shri P.G.Mewada committed the case to Sessions under Section 209 of the Code of Criminal Procedure on 30.12.1988.
3.4 Learned Additional Sessions Judge Shri P.U.Rana, as he then was, framed charge-Exh.2 for the offence under Section 20(b)(ii) read with Section 29 of the NDPS Act. The said charge was read over to the accused and was explained to them. As the accused pleaded not guilty and opted for trial, prosecution led the evidence.
3.5 The prosecution, to establish charge levelled against the accused, examined 10 witnesses and also led documentary evidence, details of which are set out hereinafter. After evidence of the prosecution was over, statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. The accused have not led any evidence in support of their defence.
3.6 Learned Additional Sessions Judge framed as many as 7 issues which are as under:-
“(1) Whether the prosecution proves that the quantity of about 1 kg. and 920 gms. of 'charas' was publicly found from the accused no.1 Shivnaresh Pruthvinath without pass permit near the Old Jakat Naka in Jamnagar at about 3.30 to 4.00 o'clock in the afternoon on 29/9/88?
(2) Whether the prosecution proves that the accused no.1 was found selling the said quantity of 1 kg. and 920 gms. of charas illegally to Harendra Harji on the aforesaid time, place and date?
(3) Whether the prosecution proves that the quantity of about 3 kgs. and 370 gms. of charas was found from the quarter of the accused no.2 Virendrasinh Pruthvirajsinh situated in the Air Force Campus and from his custody without pass permit during the period about 8.00 to 8.30 o'clock in the night on 29/9/88?
(4) Whether the prosecution proves that the quantity of 3 kgs. and 370 gms. of charas found from the accused no.2 on the aforesaid time, place and date, was kept by him for selling?
(5) Whether the prosecution proves that the accused no.2 made an effort of selling the quantity of 1 kg. and 920 gms. of charas to Harendra Harji through the accused no.1 on 29/9/88?
(6) Whether any of the charges as per the chargesheet is proved against any of the accused persons?
(7) What order?“
3.7 Learned Additional Sessions Judge was pleased to answer Issue Nos.1 to 6 in negative and Issue No.7 as per final order.
4. For the appellant 'State', learned APP Mr.L.R.Pujari assailed the judgment and order of the learned Additional Sessions Judge on various grounds and submitted that the learned Additional Sessions Judge has committed an error in recording acquittal by not believing the evidence led by the prosecution to establish charges levelled against both the accused.
4.1 Learned APP, with all vehemence at his command, submitted that while it is true that consequences of conviction in NDPS matter are serious, the Court cannot lose sight of the fact that present is the case wherein firstly quantity is such which rules out any possibility of plantation by the police. Besides, he submitted that accused No.2 was residing in Air Force area and it being a prohibited area, where there is 'no entry' to general public without permission. In the present case, even an officer of the rank of ASP had to obtain permission from the Commanding Officer who is in charge of the Air Force area. He submitted that it is equally important that the search was carried out in presence of responsible officers from Air Force, which makes the case more grave viz-a-viz other similar cases.
5. Learned Advocate Mr.B.P.Dalal appeared for accused No.1 and learned Advocate Mr.A.M.Parekh appeared for accused No.2.
6. Learned Advocate for accused No.1 strenuously submitted that the learned Additional Sessions Judge has rightly recorded acquittal and it does not warrant any interference at the hands of this Court, in an appeal filed against an order of acquittal recorded by the learned Additional Sessions Judge after careful consideration and appreciation of the evidence led by the prosecution.
6.1 Learned Advocate for accused No.1 emphatically submitted that besides other points, star point is that in the present case, the prosecution had not examined all the persons who had an occasion to handle muddamal and sample. That being so, even a slight indication of the sample being not in the same position as it was packed and taken possession of from the accused as is mentioned in the Rojkam should yield benefit of acquittal to the accused. In this regard, learned Advocate for accused No.1 submitted that it has come on record that on 28.09.1988, the information was received by the complainant; on 29.09.1988 the panchas were called and at 06.35 pm on the same day, i.e. 29.09.1988, the complainant filed FIR at Jamnagar City 'B' Division Police Station.
6.2 Learned advocate for accused No.1 submitted that as is revealed from the evidence, muddamal was received by PSO, Jamnagar City 'B' Division Police Station on 02.10.1988, but was then sent to FSL on 25.10.1988. He submitted that the period from 02.10.1988 to 25.10.1988 remains unexplained and no evidence is led to bring on record as to what happened to this muddamal during this period. Learned Advocate for accused No.1 submitted that it is on record that FSL carried out analysis on 18.11.1988 and botanical test was conducted only on 14.12.1988 and report was sent on 23.12.1988. He submitted that this is sufficient to hold that the prosecution is not able to explain the journey of sample from the date of its seizure till the report was sent and in light of that, acquittal recorded by the learned Additional Sessions Judge cannot be found fault with and is not required to be interfered with by this Court in an acquittal appeal. Learned Advocate for accused No.1 submitted that so far as identity of sample is concerned, it does not remained established in light of the discrepancy coming out from the two sets of evidence, viz. (1) Rojkam and (2) the evidence of the FSL officer who received these samples for analysis.
7. Taking into consideration the nature of the offence and gravity attached to it by the legislation and the consequences which follow if the person is held guilty, it was deemed fit that learned Advocates for the accused be asked to give their submissions in writing. Learned Advocate for accused No.1 has given written arguments.
8. Learned Advocate for accused No.1 has summarized the case of the prosecution in para-1 of his written submissions as under:-
“1. ..... A complaint was filed at 6.35 p.m. by the above named complainant before City B-
Division Police Station at Jamnagar and offence under the Narcotic Drugs Act was registered by the PSO as C.R.No.II-270/1988. The investigation of the said offence was handed over to Shri Zala, PSI of LCB Division, Jamnagar.”
8.1 In para-2, learned Advocate for accused No.1 has referred to the case of the prosecution against accused No.2 as under:-
“2. ..... On this information, Mr.Zha along with other policemen went to Air Force and after obtaining a warrant from the Authorized officer of the Air Force, made search of the house of the accused No.2. During the search police found a large quantity of Charas in Plastic Bags from the Kitchen room and from the Bathroom. A rojkam was made and the said Charas was seized after taking sample of about 5 grms. from it. Accused No.2 was also arrested.”
8.2 Learned Advocate for accused No.1 has then referred to FSL report in para-3 and the procedural aspect of framing charge, pleading not guilty and committal of the case to the Court of Sessions.
8.3 Learned Advocate for accused No.1 in para-4 has referred to evidence adduced by the prosecution during trial and statements recorded of the accused and in para- 5, he has referred to filing of the appeal by the State.
8.4 The submissions start from para-7, wherein learned Advocate for accused No.1 has referred to the evidence of difference witnesses with reference to accused No.1. The first point which is sought to be made by learned Advocate for accused No.1 is that there is discrepancy in the case of the prosecution on the point of 'time' at which information was received by the complainant. Learned Advocate for accused No.1 submitted that it has come on record that information was received on 28.09.1988 and it was on 29.09.1988 that the panchas were called and the incident is also alleged to have taken place on that very day, i.e. 29.09.1988, arrest of accused No.1 for selling 'charas' to the bogus customer. Learned Advocate for accused No.1 emphatically submitted that the discrepancy in time creates doubt about the case of the prosecution and therefore, prosecution has rightly failed and the learned Additional Sessions Judge has acquitted the accused.
Taking the same point further, learned Advocate for accused No.1 has then highlighted visit of bogus customer. It is pointed out that the bogus customer visited accused No.1 on 28.09.1988 and it was at that time decided that 'charas' will be delivered on 29.09.1988. Learned Advocate for accused No.1 has then focused on preparation of panchnama and raid. What is important is that learned Advocate for accused No.1 has tried to make out that there was no sale of 'charas' by pointing out that there was no passing of the consideration – 'agreed amount' – Rs.4,000/- by bogus customer to accused No.1 because as the evidence stands, it was right on the moment when accused No.1 took out the substance ('charas') from the right flap of scooter and was about to deliver to the bogus customer that the police personnel, in presence of panchas, caught hold of accused No.1 and therefore, the sale has not taken place.
9. This Court is of the considered opinion that the submission qua time is not having any substance. So far as 'sale' is concerned, the submission is too technical. Accused No.1, who is in service of Indian Air Force, comes out from the Air Force area and seeks to deliver 'charas', that too weighing 1 kg. and 920 gm. and merely because he is intercepted before physical exchange of money could take place, does not and cannot be said to be a ground to plead innocence of accused No.1
10. Learned Advocate for accused No.1 has then drawn attention of the Court on the aspect of discrepancy in description of sample. It is submitted by learned Advocate for accused No.1 that:-
“It is in the evidence of the complainant that, 25 gms. Charas after cutting it from one of the pieces was seized and was sealed keeping it in a “paper padika” and signature of the pancahs taken on slips were put inside the Padika and after tying with cord, seal of LCB PSI was made. The remaining stock of charas was also accordingly sealed. However, other witnesses do not say in detail about the sealing process and seizure of 25 gms. charas as sample.”
10.1 What is sought to be highlighted is that, when this sample is described by the FSL officer, he has stated that, 'two brown coloured paper packets in sealed cover were received in his office on 25.10.1988'. The emphasis is on 'paper padika' on one hand and 'two brown coloured paper packets' on the other. Besides, learned Advocate for accused No.1 also put emphasis on the point of variance in the weight of sample because according to learned Advocate for accused No.1, it was specifically mentioned by the complainant that 25 gm. of 'charas' was taken out of the total quantity as sample and was sealed, keeping it in a 'paper padika', whereas the officer at FSL has stated in no uncertain terms that 'two brown coloured paper packets' were received and the weight of the sample was found to be 8.754 gm. and 10.053 gm. The question which is rightly posed by learned Advocate for accused No.1 is how come 25 gm. 'charas' sample becomes 8.754 gm. and 10.053 gm.
11. So far as weight found by the FSL officer is concerned, the first sample pertains to first accused and the second sample pertains to second accused. Therefore, what is required to be considered by this Court is that, 'how can the sample, which was stated to be of 25 gm., is found to be only 8.754 gm. at FSL. It will be appropriate here to remind ourselves that the sample weighed at FSL is with 'precision scale', whereas sample which is stated to have been of 25 gm. is taken at a public place like 'Jakatnaka' (octrio point) that too by personal assessment of the complainant. It is nowhere on record that the complainant, at the time of taking out sample at public place, had any scale with him, with which he could have weighed the sample with precision of gms. That is why, the complainant has stated that sample 'approximately' weighing 25 gm. was taken. It is very common that except persons who are in trade of weighing commodities in gm. and milligram may have an accurate assessment of weighing in gm., otherwise in ordinary case, a person may not have precision even to the extent of kg. Ask weight of a person and he will say, I am about 60-65 kg or he may say, I am 80 plus or not more than 80. In light of that, unless this Court comes to the conclusion that the samples were not found in the same condition in which they were taken on the spot by the complainant, this variance of weight cannot be of such significance or magnitude, which learned Advocate for accused No.1 is attaching to it.
12. It is therefore necessary to consider as to whether on consideration of the evidence on record, can it be said that 'the sample' which was drawn and taken by the complainant is the same which had reached to the FSL or not. In this regard, learned Advocate for accused No.1 submitted that the sample was taken in 'paper padika', but the same was found to be in 'two brown coloured paper packets'. Again this is a matter of personal conceptualization. One may refer to the same thing as 'paper padika', whereas other person may describe it in more sophisticated manner and say that it was 'brown coloured paper packet'. In our considered opinion, the fact which cannot be lost sight of is that at both the places, the 'container' remains to be the 'paper'. Besides, one thins is certain that if the defence was so sure about the same, it could have as well subjected the complainant to further cross-examination on the aspect of 'paper padika' by asking as to, 'what was the type of the paper in which sample was drawn'. But then, in that case, the accused will be running the risk of putting an end to the possibility of creating any confusion and therefore, defence did not bring on record further details about packing of sample. This Court cannot lose sight of the fact that the complainant says that sample was drawn in 'paper padika' and the sample was received by the FSL officer in 'two brown coloured paper packets' and 'padika' in Gujarati does mean a 'packet'.
12.1 Learned APP for the appellant-State, replying to the aforesaid submission of the learned Advocate for the accused, invited attention of the Court to a decision of the Hon'ble the Apex Court in the matter of Dahel Singh Vs. State of Himachal Pradesh, reported in (2010) 9 SCC 85, wherein the Hon'ble the Apex Court had an occasion to consider question of variance in weight of sample. In the case before the Hon'ble the Apex Court, it was the case of the prosecution that two samples of 50 gm. each were taken and sent to FSL for examination, but net weight of the sample received in the Laboratory was 65.5606 gm and this discrepancy was made the basis for casting serious doubt about credibility of the prosecution case and this was pleaded as a ground enough to reject the case of the prosecution. The Hon'ble the Apex Court has observed in paras-10, 11 and 12 as under:-
“10. Mr Rai points out that taking into consideration the discrepancy in the weight of the samples at the time when it was taken and in the laboratory, this Court in the case of Noor Aga vs. State of Punjab and another, 2008(16) SCC 417, held the case of the prosecution to be not trustworthy. Our attention has been drawn to paragraph 97 of the judgment which reads as follows:
"97. The fate of these samples is not disputed. Although two of them were kept in the malkhana along with the bulk, but were not produced. No explanation has been offered in this regard. So far as the third sample, which allegedly was sent to the Central Forensic Science Laboratory, New Delhi is concerned, it stands admitted that the discrepancies in the documentary evidence available have appeared before the court, namely:
(i) While original weight of the sample was 5 gm, as evidenced by Exts. PB, PC and the letter accompanying Ext. PH, the weight of the sample in the laboratory was recorded as 8.7 gm.
(ii) Initially, the colour of the sample as recorded was brown, but as per the chemical-examination report, the colour of powder was recorded as white."
(underlining ours)
11. Reliance has also been placed on a decision of this Court in the case of Rajesh Jagdamba Avasthi vs. State of Goa, 2005(9) SCC 773, and our attention has been drawn to paragraph 14 of the judgment which reads as follows:
"14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of charas weighing 180.70 gm. The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by the Junior Scientific Officer, PW 1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope A ignoring the quantity of charas found in envelope B. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW 1 was less than the quantity sealed and sent to him. As he rightly emphasised, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW 1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful."
12. We do not find any substance in the submission of Mr.Rai and the decisions relied on are clearly distinguishable. The vehicle was intercepted and searched on a highway and it has come in the evidence of PW.16, Brijesh Sood that he had sent PW.3, Churamani to bring weighing scale and weight from the grocery shop of PW.5, Ram Lal. From the evidence of PW.3, Churamani and PW.5, Ram Lal, the grocery shop owner it is evident that the weighing scale and the weight came from the grocery shop. It is common knowledge that weighing scale and weight kept in the grocery-shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop, whereas the weight in the laboratory recorded with precision scale. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gms. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story.”
(emphasis supplied)
12.2 As discussed hereinabove, in the case on hand, sample drawn was not weighed, it was only on personal assessment that the sample was drawn estimating it to be 5 gm. in one case and 25 gm. in the other. Therefore, the variance, if any, found in the weight is not crucial enough.
12.3 In this regard, learned APP also invited attention of the Court to a decision of the Hon'ble the Apex Court in the case of Noor Aga Vs. State of Punjab & Anr., reported in (2008) 16 SCC 417, wherein in para-98 the Hon'ble the Apex Court has observed as under:-
“97. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may. ”
12.4 The fact that even the Hon'ble the Apex Court is taking note of the fact that ordinarily an officer in a public place would not be carrying a good scale with him, helps the case of the prosecution. In the case on hand, sample was drawn by the police personnel relying only on personal skill to the weight of the sample taken from muddamal.
13. Learned Advocate for accused No.1 has then invited attention of the Court to the appreciation of evidence as a whole and tried to point out discrepancies in the evidence of one Ranjitsinh Keshubhai Chavda-one of the members of the raiding party and the evidence of the complainant with regard to presence of Mr.Zha, ASP.
14. So far as presence of Mr.Zha, ASP, is concerned, it cannot be doubted and discrepancy here and there cannot be held to be fatal to the case of the prosecution, more particularly when the defence had full opportunity to bring more material on record by effectively cross-examining the witnesses on the point, which is avoided only with a view to see that the required material does not come on record and prejudice their defence.
15. Learned Advocate for accused No.1 did refer to the breach of mandatory provisions like Sections 41, 43, 55 and 50 of the NDPS Act, but could not substantiate the same.
16. So far as learned Advocate for accused No.2 is concerned, he very strenuously tried to convince the Court that case on hand is such wherein acquittal is rightly recorded and even remotely order of acquittal is not required to be interfered by this Court, in an appeal against acquittal. Learned Advocate for accused No.2 submitted that firstly there was no lawful authorization for searching the premises of accused No.2. In this regard, learned Advocate for accused No.2 submitted that Section 41 of the NDPS Act (prior to amendment in the year 2001) provided for, 'Power to issue warrant and authorisation'. According to him, it was the Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class, who are specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person or search whether by day or by night of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed. He submitted that even a Magistrate of the second class is required to be specially empowered by the State Government, otherwise it is only for a Metropolitan Magistrate or a Magistrate of the first class to issue warrant for the arrest or for search of any building, conveyance or place. He submitted that it is on record that in the present case, raiding party did not obtain any such warrant for search of the premises of accused No.2, much less for arrest of accused No.2.
16.1 In the alternative, learned Advocate for accused No.2 submitted that assuming for the sake of argument that document at Exh.17 empowered the raiding party to search and arrest accused No.2, but members of the raiding party did not comply with the instructions contained therein. In this regard, he invited attention of the Court to Exh.17, which is at page No.137 of the paper book. The Court has perused the original thereof and the same reads as under:-
“..... this is to authorise and require you to enter the said billet/arried accommodation/house P/369/5 N.P. with such assistance accommodation/house seize and take possession of ......................... (details of the property to be given) and forthwith bring before me such of the said things as may be taken possession or returning this order with as endorsement, certifying what you have done under it, immediately upon execution. ”
17. On the first brush, the argument sounds to be valid and also acceptable. But, on careful consideration, it is found that the same has no substance because so far as Section 41 of the NDPS Act is concerned, it is not to be read in piecemeal, but it is to be read as a whole and that too with Section 42.
Section 41 provides for, 'Power to issue warrant and authorisation'. Sub-section (1) confers this power on Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class, who are specially empowered by the State Government.
17.1 So far as sub-section (2) of Section 41 is concerned, it says:-
“(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence of any other department of the Central Government or of the Boarder Security Fore as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government ”
(emphasis supplied)
17.2 Meaning thereby it is not only the Metropolitan Magistrate or Magistrate of the first class or Magistrate of the second class who are empowered in this regard have power to issue warrant and authorization. Therefore, the aforesaid submission is found to be invalid. That being so, the fact that an officer of the rank of ASP was accompanying the raiding party, the members of the raiding party stood authorized to search premises of accused No.2. What is peculiar in this case is that incidentally, these premises happened to be situated in Air Force area and Air Force area being under exclusive control of the Commanding Officer of the area, permission /authorisation to enter into that area and carry out the search was required and therefore, document at Exh.17 was sought for and was granted by the concerned Commanding Officer at the relevant time. Not only that, the officers of the Air Force also accompanied the raiding party when they went to search the premises of accused No.2.
17.3 This Court deems it proper to mention that the Court is of the opinion that when members of the uniform force are found to be indulging in such anti-social activity of dealing in drugs, the offence assumes extra seriousness. When a person of uniformed force indulges in such nefarious activity, the gravity assumed is so high that no mercy can either be pleaded or shown in favour of such person. Of course, condition precedent remains that the prosecution must establish its case in accordance with law.
17.4 Section 42 of the NDPS Act talks about, 'Power of entry, search, seizure and arrest without warrant or authorisation'. This Section had certain amendment in the year 2001 like Section 41. Prior to amendment, sub- section (1) of Section 42 read as under:-
“(1) Any such officer (being an officer superior in rank of a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general of special order by the Central Government, or any such officer (being an officer superior in rank of 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 or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset.”
17.5 That being so, the submission that the search of the premises (residential house) of accused No.2 was in violation of the provision/s of the Act is not found acceptable.
18. Learned Advocate for accused No.2 next submitted that permission granted by the Commanding Officer of Air Force area in the form of search warrant-Exh.17 was not complied by the police personnel in letter and spirit. He submitted that the police personnel, after carrying out search and seizing muddamal, did not produce the same before the authority, who issued the same, as was warranted under the said document.
19. On perusal of Exh.17, it is noticed that it was in the nature of permission to enter the Air Force area and to carry out search. The submission made by learned Advocate for accused No.2 that there is non-compliance of Section 57 of the NDPS Act inasmuch as, the raiding party has not reported the result of search and seizure either to the Commanding Officer or to any Magistrate is not found acceptable for the reason that Section 57 of the NDPS Act provides as under:-
“57. Report of arrest and seizure – Whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.
(emphasis supplied)
19.1 In the present case, at the time of search, ASP Zha was present, who is the immediate superior of the raiding officer. Document-Exh.17 being only in the nature of permission to enter the Air Force area, the compliance of Section 57 was not separately required. Section 57 contemplates that a person who makes any arrest or seizure has to report to his immediate official superior. In the present case, at the time of search, complainant-Ramjubha Dolubha was accompanied by his immediate official superior–ASP Mr.Zha and therefore, provisions of Section 57 stood complied.
20. Learned Advocate for accused No.2 did argue that prosecution has not examined all the persons who had an occasion to handle the muddamal. Learned Advocate for accused No.2 also argued the point of 'identity of the sample' and submitted that from the evidence on record, it is clear that identity is not established and therefore, acquittal is rightly recorded by the learned Additional Sessions Judge.
These contentions are already considered and answered by this Court hereinabove.
20.1 Learned Advocate for accused No.2 invited attention of the Court to the evidence of ASP Mr.Zha-P.W. No.7-Exh.46 and submitted that in chief, it is stated by him that, 'from the quarter of accused No.2, from three places 'charas' was found; the entire quantity of 'charas' being similar, approximately less than 5 gm. 'charas' was taken out for sample and the 'charas' which was taken out for sample was tied with a slip containing signatures of Mr.Roy and Mr.Nair and it was sealed and remaining quantity of 'charas' was also tied and sealed.'. So far as cross-examination on the point is concerned, it is stated that, 'the facts mentioned in the Rojkam are true; the sample which was packed in a cover- (Lifafa), that cover was carried by us; the sample was packed in 'khakhi' (brown) cover; inside the cover, I had placed slip; thereafter that cover was closed; flap of the cover was affixed with gum; the cover was closed with gum, a string was tied and outside the cover also, slip containing signature was placed and on that slip, seal was applied; reference to the slip which was placed on cover is not found in Rojkam; the slip which is referred to in Rojkam is the slip which was placed inside the sample packet'.
20.2 Learned Advocate for accused No.2 then invited attention of the Court to the evidence of P.W. No.8- Mohamadyusuf Mohamadazam Lahori-Exh.48, who was working as Assistant Director at FSL, Junagadh. Learned Advocate for accused No.2 submitted that this P.W. No.8 has stated in his chief that, 'cover marked as Exh.1 contained 8754 gm. brownish black coloured substance (in original, it is mentioned as 8.754 gm. and there is a signature of the Presiding Officer); that seals applied on cover and the labels were verified and seal on the cover was tallied with seal impression on the forwarding letter'; the details on the cover were in order, comparing with the details mentioned in the forwarding letter.
20.3 Learned Advocate for accused No.2 then invited attention of the Court to the cross-examination on the point. In cross-examination, P.W. No.8 has stated that, 'In my office, two samples were received; its seal was partly illegible; it was not possible to compare the entire seal applied on the sample;. Article-5-packet is shown to me; on seeing that article, I say that white paper seal which is affixed was in this very position when this packet was received in our office; white slip was affixed on the outer portion; it was not inside packet; this slip was affixed on the cover; cover bearing article No.5 is shown to me; on the side from where cover is opened there is a seal on the right hand side; there, seal of LCB, Jamnagar was there, when we opened packet, seal of LCB office was broken.
20.4 Learned Advocate for accused No.2 emphatically submitted that, 'this witness has stated that in both the packets, there was nothing else found except sample substance'.
21. Learned Advocate for accused No.1 and accused No.2 submitted that it is very important and the Court is required to take note of the fact that, 'the slip which is stated to have been placed inside the packet at the time of drawing the sample was not found at the FSL', as deposed by this witness.
22. In the considered opinion of this Court, this submission is not acceptable because what is stated is, 'no other thing was found in both the packets excepting the sample substance'. This is apparently an answer to a question that, was there anything else in the packets in addition to the sample substance?' and the answer will be the one which is given by the witness. If the defence wanted to bring on record that the slip which is stated to have been placed in the sample packet was not found in the packet, then specific question ought to have been asked and specific answer ought to have been obtained to bring that fact on record. If any person is asked that, 'did you find anything else in the sample packet excepting sample substance?', the answer has to be the one which is given by the witness that, 'no other thing was found with the sample substance in both the packets'. Therefore, the Court declines to accept the submission made by both the learned Advocates on this aspect. Prima facie, this Court is of the opinion that the identity of the sample stands established from the evidence of P.W. No.8–Assistant Director, FSL.
23. Learned Advocate for accused No.2 next argued that P.W. No.2-Nagendrasinh Harimangalsinh-Security Officer of Air Force area is silent on the aspect of drawing of sample and sealing thereof. Learned Advocate for accused No.2 was requested to elaborate and substantiate his submission that, 'every member of the raiding party is under an obligation to narrate everything that happened during the raid'. If raiding party consists of 10 members, all 10 members need not repeat the entire process which took place during raid. In the present case, P.W. No.2-Nagendrasinh Harimangalsinh is the Security Officer of Air Force area and he was present at the time of raid in light of the fact that the premises raided were within the Air Force area and the police party was carrying out the search with the permission of the Commanding Officer of the Air Force area. When such an event is taking place, it was natural for the Security Officer to remain present there.
23.1 On perusal of the evidence of P.W. No.2, it is seen that he has stated that, 'after obtaining permission from the Station Commander Mr.Pingli, he had gone to the residence of Warrant Officer Mr.Tomar-accused No.2; at that time, he was accompanied by two Deputies one Mr.M.W.Khirwal, another Flying Officer Mr.Roy, police personnel and Warrant Officer Mr.Nair'.
23.2 On the contrary, on careful consideration of the facts of the case, this Court is of the opinion that the presence of P.W. No.2-Security Officer of the Air Force area, rules out possibility of any false implication by planting or otherwise of incriminating substance at the residence of accused No.2. This Court is conscious of the fact that it is often alleged that police falsely implicates persons in such serious offence for extraneous reasons, but then present is the case where the search took place in Air Force area, after obtaining permission from the Commanding Officer. During that search, officers of Air Force had remained present and even remotely, it is not the case of accused No.2 that his own department persons /officers had joined hands with police personnel to implicate him falsely.
24. Learned Advocate for accused No.2 relied upon a decision of the Hon'ble the Apex Court in the matter of The State of Rajasthan Vs. Daulat Ram, reported in AIR 1980 SC 1314. Learned Advocate for accused No.2 relied upon the observations of the Hon'ble the Apex Court in para-1, which reads as under:-
“Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question – a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under S.9A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.”
25. In the present case, it is Police Constable Gulmamad, who is stated to have collected 'charas' from various points in the residence of accused No.2. Now, he is not required to be examined for the simple reason that he brought 'charas' from different points of the residence of accused No.2 to a place in the house of accused No.2 where ASP Mr.Zha was sitting, where panchnama /rojkam was made and sample was drawn and sealed. It is thereafter that the sample and muddamal were handed over to PSO, Jamnagar City 'B' Division Police Station and from there, the said sample was taken by Jetmal Bhimsinh, who delivered the same to LCB Officer – Mr.Mangalsinh Mohabatsinh Jadeja on 02.10.1988, who delivered the same to FSL on 25.10.1988. Now, in the present case, the officer who drew panchnama /rojkam and undertook sealing exercise, i.e. Ramjubha Dolubha is already examined. Besides that, Mr.Mangalsinh Mohabatsinh Jadeja is examined as P.W. No.9-Exh.54 and thereafter, FSL officer Mr.Lahori is examined as P.W.
No.8-Exh.48.
25.1 As discussed hereinabove, this Court is of the opinion that the FSL officer found sample packets in the same condition as they were sealed at the time of drawing samples on the day of the incident. If that is so then examination of all the persons who had an occasion to handle the muddamal was not required. It is only in the event when samples are not found to be in the same condition that the persons handling muddamal /samples are required to be examined because that will help to ascertain as to at what stage the samples got tampered and lost their identity. But, once evidence is on record that the samples were found to be intact–in the very same condition as they were packed, the question of examining all the persons who had handled the samples does not arise.
25.2 Learned Advocate for accused No.2 very emphatically submitted that the muddamal was taken to FSL after a long lapse of time, i.e. 02.10.1988 to 25.10.1988. It is a matter, of which judicial notice can be taken that police personnel dealing with such matters and handling such cases are not assigned exclusive duty to deal with these cases. They do have other duties which they are duty bound to perform and unless it is coming on record that the sample was tampered, the time-
leg is of no significance.
25.3 As stated hereinabove, learned Advocate for accused No.1 did argue that at FSL, though the sample was delivered on 25.10.1988, analysis was made only on 18.11.1988, i.e. almost after a month and thereafter, botanical test was conducted only on 14.12.1988, again almost after a month and report was sent on 23.12.1988.
25.4 This submission will be required to be accepted only if for every case under the NDPS Act, an FSL, if not entire laboratory, then atleast one officer is assigned with an obligation to immediately undertake the analysis of the muddamal. In absence of that, unless it comes on record that this delay has caused any prejudice to the accused, it is liable to be rejected.
25.5 It is a matter of which judicial notice can be taken that FSL has various duties to be performed and while performing those duties, it has also to perform the duty of analyzing the samples'. This time-leg can assume significance only when it is the case of the defence that on account of this time-gap, the sample got deteriorated and resulted into unfavourable report. In absence of any such possibility having been pointed out, this argument does not warrant acceptance at the hands of this Court.
26. Learned Advocate for accused No.2 did argue about variance in weight of the sample. He submitted that so far as variance in case of accused No.2 is concerned, it is much more significant inasmuch as, in his case, it is specifically stated by ASP Mr.Zha that sample was drawn less than 5 gm. but in the FSL the same was found to be 10.053 gm. So, instead of sample losing weight on account of evaporation of moisture, it has gained weight. But then, as discussed hereinabove, if the evidence of ASP Zha is perused little closely, he has stated that, 'sample approximately less than 5 gm. was drawn' and as stated hereinabove, unless a person is required to weigh with precision of gm., one cannot assess the weight. The assessment varies from individual to individual. In normal daily routine, one is not faced with the work of weighing with precision of gm. Therefore, in the present case, when the sample was weighed at FSL with precision scale, it was found to be weighing 10.053 gms.
26.1 Learned Advocate for accused No.2 also submitted that so far as the variance in the weight of sample and similarly so far as non-examination of the persons who had an occasion to handle the sample packets, relying on which it was contended by the defence that the sample was tampered and it has lost its identity, are involving disputes facts. Learned Advocate for accused No.2 also submitted that the appellant-State has not challenged the findings recorded by the learned Additional Sessions Judge on these points and therefore, the findings recorded are binding on the appellant-State and the appellate-State cannot now be allowed to agitate these points and get re-considered by this Court.
27. In the considered opinion of this Court, the submission is misplaced and misconceived for the reason that the Criminal Appeal against an order of acquittal by the learned Additional Sessions Judge before the High Court is the first appeal and is not restricted to only 'question of law'. Besides, an appeal is never restricted to the 'grounds agitated in the appeal memo'. All available points are argued at the time of making oral submissions by both the sides including the learned APP.
28. Learned Advocate for accused No.2 submitted that even at the cost of repetition, he be permitted to submit that, 'the sample drawn at the residence of accused No.2, packed and sealed in a manner mentioned in the evidence of the complainant was not found in the same condition by P.W. No.8-Assistant Director, FSL'. In this regard, he submitted that it is stated in no uncertain terms that the slip signed by Mr.Nair and Mr.Roy was placed inside the sample and P.W. No.8 has categorically stated that, 'in both the packets besides sample substance, no other thing was found' and therefore, only inference which could be drawn is that, 'there was tampering of sample' and therefore, acquittal is a necessary consequence thereof.
29. We have considered in detail and answered this argument in earlier part of this judgment, at the time of considering the submissions made by learned Advocate for accused No.1. However, it may be reiterated that even if the learned counsel for defence had remained successful in creating confusion by playing with the words, he is not able to bring on record, despite lengthy cross- examination of P.W. No.8 that 'slip was not found in the samples packed'. We need not reproduce the entire reasoning set out hereinabove.
30. Learned Advocate for accused No.2 relying on a decision of the Hon'ble the Apex Court in the matter of State of Punjab Vs. Balbir Singh, reported in AIR 1994 SC 1872 submitted that in the said decision, the Hon'ble the Apex Court has laid down that provisions of Sections 41(1)(2) and 42(1) are mandatory. Learned Advocate for accused No.2 submitted that there is non-compliance of Sections 41(1)(2) and 42(1) inasmuch as, the persons, who searched and effected seizure in case of accused No.1 as well as that of accused No.2 did not obtain any warrant from the Magistrate.
31. Learned Advocates for both the accused submitted that besides breach of the mandatory provisions of the NDPS Act, the search and seizure carried out by the police personnel is also in violation of Section 102(3) of the Criminal Procedure Code. Learned Advocate for accused submitted that under sub-section (3) of Section 102 of Criminal Procedure Code, it is mandatory for every police officer who is acting under sub-section (1) to forthwith report the seizure to the Magistrate having jurisdiction. In this regard, learned Advocates for the accused placed reliance on the decision of the Division Bench of this Court in the matter of Shivabhai Gajmalbhai Vs. State of Gujarat, reported in 1996 (2) GLR 64. Learned Advocate for the accused submitted that this Court has held that when seizure of 'charas' is not reported to Magistrate as required under Section 102(3) of the Criminal Procedure Code, trial stands vitiated. Learned Advocate for the accused submitted that the Division Bench has held that even assuming that, the provisions of Section 102(3) are directory, substantial compliance thereof would still be necessary.
32. To appreciate the submission made by the learned advocates for the accused, let us see Section 102, which provides for 'Power of police officer to seize certain
property'. Sub-section (1) of Section 102 provides that:-
“(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.”
32.1 So far as sub-section (2) of Section 102 is concerned, it provides that:-
“(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.”
32.2 Then comes sub-section (3) of Section 102, which is added by amendment in the year 1978. It provides that:-
“(3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction. ”
32.3 By necessary implication, sub-section (3) is made applicable to the police officers who are acting under sub-section (1). Now, sub-section (1) confers power on any police officer to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. In the present case, the raiding party consisting of complainant as well as his immediate superior officer of the rank of ASP were acting under the provisions of the NDPS Act and therefore, when a special Act is applicable to the facts of the case and if the Court finds that there is compliance of the provisions of the special Act, the question of non-compliance of sub-section (3) of Section 102 does not arise.
33. Learned Advocates for the accused submitted that there is non-compliance of Sections 50 and 54 of the NDPS Act and therefore, the order of acquittal be not disturbed. In this regard, learned Advocates for the accused relied upon a decision of the Hon'ble the Apex Court in the matter of Saiyad Mohd. Saiyad Umar Saiyad & Ors. Vs. State of Gujarat, reported in 1995 (2) GLR 1315, where Bench, consisting of the Hon'ble the Chief Justice and other two Hon'ble Judges, was pleased to hold that:-
“It is obligatory on the part of a police officer to inform the citizen that he has a right to have him searched in the presence of a Gazetted Officer or a Magistrate-Failure to so inform the citizen is fatal-No presumption can be drawn that the police officer had discharged this duty-The onus cast on an accused under Sec.54 would not cure the lacuna-Accused entitled to be acquitted.”
33.1 In this regard, observations made by the Hon'ble the Apex Court in para-6 of the said judgment are reproduced for ready perusal:-
6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than IO years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he
the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate.”
33.2 Learned Advocate for accused No.2 qualified his submission by saying that he has relied upon this decision only for a limited purpose, i.e. any protection flowing from the mandatory provision of the Act (NDPS Act) is required to be made available to the accused and non-compliance or non-observance of any mandatory provision is fatal to the case of the prosecution.
33.3 Learned APP, in reply to the aforesaid submission of learned Advocate for accused No.2, submitted that accused No.1 was searched in public place, hence provisions mentioned by the learned Advocate for the accused will not be applicable and so far as accused No.2 is concerned, the search was carried out after obtaining permission from the Commanding Officer of Air Force Area to enter into the campus. In his case, search and seizure had taken place in presence of the officer of the rank of ASP and therefore, the provisions referred to by the learned Advocate appearing for him will not be applicable to the facts of the case.
33.4 Learned APP for the appellant-State replying to the aforesaid submission submitted that Section 50 provides for condition under which search of 'persons shall be conducted'. Learned APP submitted that Section 50 is applicable only when a person is to be searched and not premises or any other container including vehicle by which he is travelling or the bag carried by him. In this regard, learned APP relied upon a decision of the Hon'ble the Apex Court in the matter of State of H.P. Vs. Pawan Kumar, reported in (2005) 4 SCC 350. Learned APP submitted that this is a decision by Full Bench of the Hon'ble the Apex Court, to which Hon'ble the Chief Justice was a party. Learned APP submitted that the Hon'ble the Apex Court has considered in detail the phrase used in Section 50 – 'search of person'. Learned APP invited attention of the Court to Head Note-A, which reads as under:-
“A. Intoxicants–Narcotic Drugs and Psychotropic Substances Act, 1985-S.50 – Applicability of – Search of a person – Word “person” - Meaning and scope of – Search of a bag, briefcase or any such article or container, etc. which is being carried by accused, held, is not a search of the person – Hence, S.50 would not apply in such a case – Word “person” would mean a human being, with appropriate coverings, clothings and footwear – The aforesaid articles (nag, briefcase, etc.) cannot be treated as body of a human being – Hence, these would not come within the ambit of the word “person” occurring in S.50 – One of the tests to be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of the person – Some indication in this regard is provided in S.50(4) – State of confusion and practical difficulties which may arise if S.50 is made applicable to the aforesaid search, noticed – Considering ill effects of drug trafficking, further held, those indulging in these nefarious activities should not go scot-free on technical plea as to non- compliance with S.50 – Words and phrases – “Search of person”, “person”, “inextricable” - Interpretation of Statutes – External aids – Dictionaries or dictionary meaning – Consideration of.”
33.5 Learned APP also invited attention of the Court to paras-7, 8, 10, 11 and 12 of the said decision. The same are reproduced for ready perusal:-
“7. The word "person" has not been defined in the Act. Section 2(xxix) of the Act says that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. The Code of Criminal Procedure, however, does not define the word "person". Section 2(y) of the Code says that the words and expressions used therein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word "person" includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.
8. One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh ed. page 83-85). In the well known treatise # Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter # The Rule of Literal Construction # page 78 # Ninth ed.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376, S.R. Das, J. said:
"The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation."
A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person".
9. xxxx
10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free.”
33.6 Learned APP submitted that in the present case, accused No.1 was never searched before incriminating article was caught while he was delivering the same to the bogus customer after taking out the same from the right flap of his scooter, whereas accused No.2 was found in possession of incriminating article in his residential quarter and therefore, Section 50 has no application.
33.7 Learned APP submitted that once Section 50 is not applicable to the facts of the present case, question of application of sub-section (2) of Section 50 does not arise because it is only in case where person is to be searched on his person, the provisions of Section 50 including that of informing him about his right of being searched in presence of a Magistrate or gazetted officer will arise.
34. The submission made by the learned APP for the appellant-State is found acceptable and therefore, the decisions relied upon by the learned Advocate for accused No.2 will not be of any help to the present accused.
35. Having heard both the sides and having perused the evidence on record, this Court, as set out in opening part of this judgment, is of the opinion that this is a fit case wherein the Court has to interfere with the order of acquittal recorded by the learned Additional Sessions Judge. Instead of reiterating the evidence and the manner in which it is appreciated, which is found to be not only unsatisfactory but not acceptable, this Court is of the opinion that the findings recorded and the conclusions reached by the Court below are untenable in law.
35.1 This Court is of the opinion that present is the case to which the observations made by the Hon'ble the Apex Court in the matter of Shivaji Sahebrao Bobade & Anr.
Vs. State of Maharashtra (supra) in paras-5, 6 and 7, which are referred to and relied upon are squarely applicable and therefore, the order of acquittal is required to be interfered with and reversed, otherwise there will be miscarriage of justice.
36. Learned APP for the appellant-State invited attention of the Court to a decision of the Hon'ble the Apex Court in the matter of Sucha Singh & Anr. Vs. State of Punjab, reported in (2003) 7 SCC 643, wherein the Hon'ble the Apex Court had discussed in detail the method and manner for appreciating the evidence. Paras-13 to 23 very aptly discuss those principles. Instead of narrating those principles in one's own words, it is deemed proper to reproduce paras-13 to 23 for ready perusal:-
“13. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
14. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
15. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)was also relied upon.
16. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
17. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
18. To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr.
v. State of Punjab ( AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors.
v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186). Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.
19. As observed by this Court in State of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776) the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [1974 (1) SCR 489 (492-493)]:
"......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. "
".....The evil of acquitting a guilty person light-heartedly as a learned author Clanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....." ".......a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. "
22. The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal (AIR 1988 SC 2154). Similar view was also expressed in Gangadhar Behera and Ors. v. State of Orissa (2002 (7) Supreme 276).
23. So far as inaction of PWs 9 and 10 in not coming to rescue of deceased is concerned, it has been noted by the trial Court and the High Court that both of them were unarmed and bare handed and the accused persons were armed with deadly weapons. How a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like in the present case where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence.”
36.1 Learned APP also invited attention of the Court to a decision of the Hon'ble the Apex Court in the matter of State of U.P. Vs, Banne @ Baijnath & Ors., reported in 2009 (2) GLH 279. Learned APP invited attention of the Court to para-22 of the said judgment, wherein the Hon'ble the Apex Court has held that:-
“22. This court, in a recent judgment in Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 considered earlier cases and laid down that the appellate court should, therefore, reverse an acquittal only when it has "very substantial and compelling reasons".”
(emphasis supplied)
36.2 Learned APP then invited attention of the Court to para-24 of the said judgment, wherein the phrase, 'very substantial and compelling reasons', is explained by the Hon'ble the Apex Court. Para-24 reads as under:-
“24. Lekha Yadav v. State of Bihar (1973) 2 SCC 424, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:
"The different phraseology used in the judgments of this Court such as-
(a) substantial and compelling reasons:
(b) good and sufficiently cogent reasons;
(c) strong reasons.
are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified."
(emphasis supplied)
36.3 Learned APP then invited attention of the Court to para-27 of the said judgment, which reads as under:-
“27. In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361, the Court observed thus:
"It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account.
To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.]”{emphasis supplied}”
[emphasis supplied]
37. In the considered opinion of this Court the decision cited by the learned APP squarely applies to the facts of the present case and this Court is of the opinion that Section 50 will have no application to the case on hand and there is no question of non-compliance of Section 50 on the part of the police personnel.
38. In the result, the Court comes to a conclusion that the learned Additional Sessions Judge has committed an error in recording acquittal of the accused Nos.1 and 2. The judgment and order of acquittal dated 12.07.1990 passed by the learned Additional Sessions Judge, Jamnagar in Special Criminal Case No.1 of 1989 is quashed and set aside. The Court holds both the accused guilty of offence under Section 20(b)(ii) of the NDPS Act.
39. Learned Advocates for the accused to keep the respective accused present before this Court for hearing them on quantum of punishment on 27.02.2012.
(Ravi R.Tripathi, J.)
*Shitole
(G.B.Shah, J.)