(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and order dated 17.7.2008 passed by the learned Special & Additional Sessions Judge, Bhavnagar in Special NDPS Case No. 9/2005 and 13/2005, whereby, the appellant – original accused no. 1 has been convicted for the offence under section 8(c) read with section 20(c) of the Narcotic Drugs and Psychotropic Substances Act ( hereinafter referred to as the “Act”) and the sentence has been imposed of 10 years R/I with the fine of Rs. 1,00,000/-, and in default of payment of fine, further 2 years R/I. The other accused A-3 has been acquitted and A-2 who was absconding, no order is passed.
2. As per the prosecution case, on 22.3.2005, when Shri B.M. Rajpara, Police Inspector, B-Division Police Station, Bhavnagar (PW-1) was on duty, he received the information at 17.30 hours that one Sunil son of Shrikunj Bihari, was in possession of the Ganja in his house, situated at Juna Maliya, 512, L.I.G., Room No. 1009, Bharatnagar and he was selling the same. Therefore, the said information was got verified by him through Police Constable Pranlal Mahashankar, PW-3, and thereafter, as the information was found to be reliable, the entry was made in the station diary and the arrangement was made for raid and instead of wasting time for getting the warrant since the accused was likely to run away and the muddamal could be shifted to the other place, a decision was taken under section 42 of the Act (one who is weighing the material) was also called. Thereafter, the said officer with other police officers and panchas went to the place and when the door was knocked at 19.15 hours, one person opened the door and his name was Sunil son of Shrikunj Bihari Chaudhary. Thereafter, the police officers informed Sunil about the option for search in the presence of Magistrate or any gazetted officer, but such option was not exercised, and thereafter, the search and seizure of the premises was made and it was found that below one iron bed, various bags were lying, and in the meantime, the FSL Officer was also called and he came. There were in all 9 bags containing (1) 2.425kg (2) 2.525 kg (3) 2.570kg (4) 2.450 kg (5) 2.530 kg (6) 2.700 kg (7) 2.350 kg (8) 2.730 kg and (9) 4.230kg, in all, total 45.230 kg material was found, which according to the FSL Officer, was Ganja. Therefore, the samples were taken and the remaining material was also separated. The option was given to A-1 by explaining him in Hindi if he was desirous to get the weight done by the other mode, which was not opted by A-1. In the further search, one cable card of Shriji Cable Service Center in the name of Sunilbhai was also found. Thereafter, the complaint was registered with the B-Division Police Station, Bhavnagar.
3. After the investigation, the charge-sheet was filed against A-1 and A-2 and the case was committed to the Special Court being Special NDPS Case No. 9/2005 and the separate charge-sheet was filed against the A-3, which was ultimately committed to the Special Court being Special NDPS Case No. 13/2005. Thereafter, both the cases were combined.
4. The prosecution, in order to prove the guilt of the accused, examined 11 witnesses, the details of whom are mentioned by the learned Special Judge at para-4 of the judgment. The prosecution also produced the documentary evidence of 20 documents, the details of which are mentioned by the learned Special Judge at para-5 of the judgment.
5. The learned Special Judge, thereafter, recorded the statement of the accused under section 313 of Cr.P.C., wherein, A-1 stated that he was not present and since last 8 years, he was staying at Sindhunagar area of Bhavnagar with his wife and children and he was working at Alang. The police had taken him from his residence to B-Division Police Station, Bhavnagar and filed the false case. A-3 also denied the evidence against him and claimed that he was innocent. So far as A-2 absconding accused, the case was separated. The learned Special Judge, thereafter, heard the prosecution and the defence and found that the prosecution has been able to prove the case for the charged offences against A-1 but has not been able to prove the case against A-3 and, therefore, convicted A-1 and imposed the sentence as referred to herein above. However, A-3 was acquitted. It is against the conviction and sentence imposed upon A-1, he has filed he present appeal before this Court.
6. Learned counsel appearing for both the sides have taken us to the entire evidence on record. We have considered the judgment and the reasons recorded by the learned Special Judge. We have also heard Mr. Buddhbhatti learned advocate appearing for the appellant A-12 and Ms. Shah learned APP for the State.
7. Complainant Balabhai Rajpara PW-1, whose testimony is recorded at Exh. 12, has fully supported the case of the prosecution,inasmuch as, as per his testimony after the information was received by him and the same was found reliable, he before proceeding for search and seizure, he intimated to the Superior Officer, i.e. Deputy Superintendent of Police and such intimation was sent by special messenger. As per his testimony, the panchas and other staff of police force, had searched each other and thereafter, when they reached to the place of room no. 1009,and upon knocking, one person opened the door and he named himself was Sunil Shrikunjbihari. The witness had also identified A-1. Since A-1 was knowing Hindi, the conversation had taken place in Hindi and the option was given for getting searched in presence of any magistrate or any gazetted officer, which was not accepted by A-1. As per the said witness, the FSL Officer was also intimated to come, and thereafter, the search had taken place and as per the preliminary view expressed by the FSL Officer, the material found from 9 bags was Ganja. Thereafter, the samples were taken and were sealed and all other procedure was undertaken in presence of panchas and during the search, currency of Rs. 660/-, two mobile phones, one of Nokia make and another of Reliance, with the cable card in the name of A-1 were recovered. The seizure memo was also issued. Thereafter, the complaint was filed and the report was also forwarded to the superior officer i.e. Deputy Superintendent of Police. The defence, in the cross-examination of this witness has not been able to bring about any material contradiction.
8. PW-3 Pranlal Mahashankar, Police Officer who had verified the information, was examined and his testimony is at Exh. 32. He has also supported the case of the prosecution on the aspect of the verification of the information received and he was also one of the member of the raiding party. PW-4 Usmanbhai Mahmadbhai Exh. 33, was declared hostile since he did not support the case of the prosecution, but in his cross-examination, the contradiction is proved by the learned APP about weighing of Ganja and the recovery of weighing scale, two mobile phones and currency of Rs. 660/-. PW-5 Amubhai Kanjibhai Ex. 34, has supported the case of the prosecution for receipt of sealed bag of Ganja and cash property (muddamal) and he has stated that it was found in sealed condition. PW-8 Pravinbhai Exh. 38 has supported the case of the prosecution for the intimation send to the superior officer i.e. Deputy Superintendent of Police by Shri Rajpara PW-1. PW-9 Yashwantsinh Sherubha Exh. 40 has supported the case of the prosecution for registration of the complaint and the receipt of possession of all the case property in sealed condition. PW-10 Lakhubha Gulabsinh Ex. 43, has also supported the case of the prosecution for forwarding the samples to FSL. PW-11 I.O. Kanaksinh Gagubha Exh. 47 has completely supported the case of the prosecution. It is true that panchas were declared hostile and they did not support the case of the prosecution, but their signatures were admitted by them and the contents of the panchnama of search and seizure is proved by the deposition of PW-1 complainant and PW-11 I.O. There is further corroboration of the said panchnama by the testimony of other police officers who had accompanied in the raid. Further, the FSL report has come on record at Exh. 50, wherein, it is stated that the samples were received in sealed condition and the opinion shows that the material recovered was Ganja.
9. On the aspect of conscious possession, as per the prosecution case, the burden was satisfactorily discharged inasmuch as when the premises was raided, A-1 was found at that place and a card for cable connection in the name of Sunil was found and the name of A-1 is also Sunil and that aspect is proved. In furtherance thereto, the prosecution has examined PW-7 Nileshbhai Manilal Exh. 37, who has deposed for having issued the cable card in February, 2005 in the name of Sunil. If the deposition of PW-7 Exh. 37 is considered with the testimony of I.O. PW-11 Kanaksinh Gagubha Exh. 47, it has come out in the cross-examination that the card was issued for giving cable connection at room no. 1009 on 16.2.2005. The said aspect is further corroborated by the recovery of the card at that place. The prosecution has examined PW-6 Kripalsinh Jatubha Ex. 36, the owner of the property and as per his testimony, he had given the premises on rented basis to A-1. The only aspect which is more pressed in service by the learned counsel Mr. Buddhbhatti is that it was on 22.3.2005, that is, on the very day, as per the said witness the premises was given on rented basis. But, we find that the said aspect shall be dealt with by us hereinafter when we consider the submission of learned counsel for the appellant. In any case, the aforesaid shows that the prosecution has led the evidence to show the conscious possession of the contraband article or the material of A-1.
10. The learned counsel for the appellant has raised the only contention that the prosecution has not been able to discharge the burden successfully of the conscious possession of A-1 – appellant herein and the contention of the learned counsel for the appellant is that the place of residence of A-1 was at different place and it had come out already in the investigation. He submitted that nothing was found at the place or from the possession of A-1 except one cable card for cable connection. In his submission, such would not be sufficient to prove the conscious possession, more particularly, when even if the deposition of the landlord Kripalsinh PW-6 Exh. 36 is taken into consideration, the premises was rented on the same day. As per the learned counsel for the appellant, it was impossible for any person to occupy the premises on the same day and keep the material of such huge quantity in the premises which was having sized of only 10 x 10 ft. only. The learned counsel in furtherance to the submission, has relied upon the decision of this Court in the case of Ibrahim @ Ghafo Ismailbhai Tarakwadia vs. State of Gujarat in Criminal Appeal No. 237 of 2009 dated 1.2.2012, and therefore, it was submitted that the present case is also similar to that of Ibrahim (supra) and the accused A-1 be given benefit and be acquitted by this Court by allowing the appeal.
11. The contention prima-facie may show some substance, but upon the closed scrutiny, it appears that it is not a case where the raid was carried out in absence of A-1, but on the contrary, when complainant and other police party raided the premises and upon knocking the door, A-1 was found in the premises. It is not the case of the defence that any other person was also available in the premises when raid was carried out or the search and seizure was made. The said aspect is to be considered in light of evidence of PW-6 Kripalsinh Exh. 36, who has deposed that the premises was rented to A-1. Once the premises was rented to A-1, the possession of A-1 could be said as proved by the testimony of PW-6 Kripalsinh Exh.36. Merely because the date on which the possession was handed over was 22.3.2005, it would not make the case improbable as sought to be canvassed by the learned counsel for the appellant. The reason being that search has not been carried out on 23.3.2005 in the early morning hours, but it has taken place after 18.45 hours, i.e. 6.45 of evening time.
Therefore, even if it is considered for the sake of examination that the deposition of PW-6 Kripalsinh Exh. 36 is to be completely believed also for handing over the possession on 23.2.2005, it cannot be said that during the evening time when the search has taken place, out of the belongings of the tenant A-1, the material Ganja could not be said as non-available nor the case of the prosecution could be turned as improbable by applying reasonable prudence. If the tenant has occupied the premises in the morning time or in the beginning of the day and the search takes place in the evening, one cannot get away from the lawful liability of his belongings found from the rented premises, as sought to be canvassed by the learned counsel for the appellant. Further, as per PW-6 Kripalsinh Exh. 36, there was no rent note executed nor he was giving any receipt, therefore, his say of giving possession on 23.3.2005 only and not prior thereto, cannot be said to be frustrating the case of the prosecution for also showing the possession of A-1 of the premises prior to 23.3.2005 since the cable connection was stated to be given in February as per Nilesh Manilal PW-
7 Exh. 37. It is not a case where only cable card was found for dish connection, but it has come out in the panchnama that when the search and seizure had taken place, that room or the premises found to be in possession of A-1 did contain TV, therefore, existence of cable connection and the cable card on the name of A-1 could said as in normal course. The attempt to contend that there could be more than one Sunil because his father's name was not mentioned in the cable card nor the cable operator Nilesh PW-7 refers his father's name, therefore, his testimony could be said as unreliable, in our view, cannot be countenanced because it is not the defence of A-1 in the cross-examination of the said witness that A-1 had not obtained cable connection, but on the contrary, no question whatsoever was put in the cross-examination to the said witness by A-1 or any other accused by way of suggestion of otherwise.
12. The aforesaid evidence led by the prosecution, in our view, shows that the circumstances that when the search was made of the premises, A-1 was found in actual possession of the premises and none else was found at that place. Keeping in view the evidence of PW-6 Kripalsinh Exh. 36 with the further corroboration of evidence of PW-
7 Nileshbhai Exh. 37 and the recovery of cable card for dish connection shows that the prosecution has been able to discharge the initial burden for conscious possession of ganja found from the bags found inside the premises. Thereafter, the burden would get shifted to the accused for showing otherwise to come out from the allegation of conscious possession. No evidence whatsoever was led by A-1. Not only that, but there was no sufficient explanation of the incriminating material found in the statement under section 313 of Cr.P.C. given by the A-1.
13. The attempt made by the learned counsel for the appellant to rely upon the decision of this Court in the case of Ibrahim (supra) is illfounded inasmuch as in the said case, this Court did recorded at para-12, the relevant of which reads as under:
“.... If a psychotropic substance was found from the premises which was locked and the raid is carried out at the time when the accused was not present, it was for the prosecution to prove the conscious possession and such conscious possession could be proved by examining any witness of the nearby area which admittedly is not examined in the present case. It could also be proved by showing that the accused is the only person in occupation of the premises...”
13. In the said case, when the raid was carried out and search and seizure was made, the premises was in locked condition and the accused was not present. No witness was examined of the nearby area for showing that the accused was in possession of the premises. It is in these facts situation, the court observed that the existence of one jug or two postcards or electricity connection in the name of the father of the accused could not be said as sufficient for proving the exclusive possession beyond reasonable doubt. Whereas, in the facts of the present case, search was carried at the time when A-1 was found in possession of the premises. The search was also carried out in presence of A-1. The landlord PW-6 Kripalsinh Jatubha Exh. 36 is examined and he has supported the case of the prosecution for the possession. Under the circumstances, the present case cannot be equated with the facts of the case of Ibrahim (supra) upon which the reliance is placed by the learned counsel for the appellant. Hence, the decision is of no help to A-1.
14. In view of the aforesaid observations and discussions, we find that the prosecution in the present case could prove the initial burden for conscious possession of A-1 beyond reasonable doubt, and further as observed earlier, there is no rebuttal or other evidence produced by accused to show otherwise.
15. Under the circumstances, we find that the ultimate decision taken by the learned Special Judge for holding A-1 guilty for the charged offence, cannot be said to be erroneous which may call for the interference by this Court.
16. In view of the aforesaid observations and discussions, the appeal is meritless, hence, dismissed.
[JAYANT PATEL, J.] [PARESH UPADHYAY, J.] mandora/