RAGHUBHAI GANDABHAI BHARWAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal, which is filed under Sec. 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated December 21, 2001, rendered by the learned Additional City Sessions Judge. Court No. 7. Ahmedabad City, in Sessions Case No. 115/2001, by which the appellant is convicted under Sec. 17 & Sec. 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ("the NDPS Act" for short) and punished with R.I. for 10 years and fine of Rs. 1,00,000/- (Rupees One Lac) i/d. R.I. for one year for the offence punishable under Sec. 17 of the NDPS Act as well as R.I. for 10 years and fine of Rs. 1,00,000/- (Rupees One lac) i/d. R.I. for one year for the offence punishable under Sec. 18 of the NDPS Act. We may state that learned Judge has not directed that the punishments imposed on the appellant shall run concurrently and, therefore, in view of the provisions of Sec. 31 of the Code of Criminal Procedure, 1973, the effect of imposition of punishment of imprisonment is that the punishments consisting of imprisonment will commence one after the expiration of the other.

(2.) On June 10, 2001, informer of police constable Himatsinh Lalubha Gohil, who was then serving as police constable, Detection of Crime Branch, Ahmedabad, had informed the police constable that one Raghubhai Bharvad was to pass through Thaltej Cross Roads on June 10, 2001 between 13.00 hours and 14.30 hours with opium, and was to come from Sarkhej side for going towards Ghatlodia. On receiving this information, police constable Himatsinh Lalubha Gohil had conveyed the information to Mr. R.C. Pathak, who was then Police Inspector, Detection of Crime Branch. On receipt of information from police constable Himatsinh. Police Inspector had called two panch witnesses through head constable Bhimji Amarsinh. Necessary information was given to the panch witnesses on their arrival at the Police Station by P.I. Mr. Pathak. P.I. Mr. Pathak had also made necessary entry in the station diary maintained at the Police Station and informed the higher officers about the information received. At about 12.30 noon, the raiding party consisting of police personnel and panch witnesses, had gone to Thaltej Cross Roads in a Government Vehicle and maintained a watch there. The Police Inspector had also carried with him a kit containing certain articles like boxes etc., necessary for conducting a raid. At about 13-35 hours, a person who had put on the dress of a shepherd and whose description was given by the informer, was sighted with an embroidered bag in his hand by police constable Himatsinh. On noticing the said person, head constable Himatsinh had given signal to P.I. Mr. Pathak and thereupon the raiding party was alerted. When the appellant came near Thaltej Cross Roads, he was stopped by P.I. Mr. Pathak and informed that he was required to be searched, as an information had been received that he was possessing opium. P.I. Mr. Pathak had thereafter given option to the appellant that, if he so desired, he could be taken to the Gazetted Officer or the Magistrate for the purpose of search, but the appellant had not exercised the said option saying that he had full faith in him. Thereupon the bag, which was carried by the appellant, was searched from-where a cotton dhoti was found. On unrolling the dhoti, a transparent plastic bag was found, wherein a soft black substance like opium was kept. A rexine wallet containing Rs. 1160/- was also found. After opening the plastic bag, the panchas were requested to see and smell the soft black -substance which was kept in the plastic bag. On seeing and smelling, the panch witnesses as well as others had identified the said substance as opium. Head constable Jayendrasinh was sent in the Government vehicle to bring an expert from Forensic Science Laboratory ("F.S.L." for short) on the spot. Meanwhile, P.I. Mr. Pathak had directed police constable Himatsinh to bring a businessman for the purpose of weighing the substance found and, therefore, Himatsinh had gone to village Thaltej and brought with him Bharatbhai Rupabhai Od. Who is having a grocery shop at Thaltej village, for the purpose of weighing the substance found in the plastic bag. Mr. Bharatbhai Od had brought with him the scales and after arrival at the spot, he had weighed the substance, weight of which was found to be 340 grams. Thereafter the expert from F.S.L. had also come on the spot and taken 2 grams out of 340 grams for the purpose of preliminary examination, of the substance. On preliminary examination, it was found by the expert of F.S.L. that it was a psychotropic substance. Therefore, he had suggested to the investigating officer to prepare a sample of 25 grams and send the same to F.S.L. for analysis. Accordingly, sample of 25 grams was prepared and placed in a plastic box which was brought by P.I. Mr. Pathak, with him from the police station. After obtaining signatures of the panchas on slips, the plastic box was sealed with sealing wax, whereas rest of the quantity found was placed in another box, which was also sealed with sealing wax after obtaining signatures of the panch witnesses on slips and tied with twine. The first sample containing 25 grams was marked as Mark 'A', whereas the second was marked as Mark 'B'. The appellant was called upon to produce pass or permit authorising him to possess opium, but the appellant could not produce the same. Thereafter the second part of the panchnama was completed on the spot and signatures of the panch witnesses were obtained thereon. The Police Inspector had also prepared the complaint at the spot. Thereafter the raiding party had returned with the appellant to the Police Station and the muddamal articles seized as well as the appellant were handed over to head constable Ganpatsinh Samatsinh Chauhan, who was then police officer incharge of the police station. The said police constable had registered the complaint given by Mr. Pathak and the appellant was arrested. The police constable Ganpatsinh Chauhan had kept the sample in his custody and on the next day, he had handed over the same to the crime writer head Rumalji Shivaji for the purpose of sending the same to F.S.L. A.S.I. Mr. P.A. Jhala, who was then serving in Crime Branch, Ahmedabad, had obtained necessary form from the Office of Commissioner of Police for sending the muddamal to F.S.L. and after obtaining the form. The particulars required were filled in and thereafter the sealed packet was handed over to crime writer head Rumalji for taking it to the forensic science laboratory. Crime Writer Head Rumalji had brought the sample to F.S.L. Where the sample was analysed. The report of the analysis indicated that the substance analysed was opium as defined in the NDPS Act. Further investigation into the case was carried out by Mr. R.B. Joshi, who was then P.S.I, at Detection of Crime Branch Ahmedabad as well as by Mr. B.C. Joshi, who was then P.S.I, at City Crime Branch Office. On receipt of report and completion of the investigation, the appellant was charge-sheeted for the offences punishable under Sees. 17 & 18 of the NDPS Act in the City Sessions Court, Ahmedabad.

(3.) The learned Judge had framed charge at Exh.2 against the appellant of the offences punishable under Secs. 17 & 18 of the NDPS Act. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution had examined, (1) Rajendrakumar Chunilal Pathak, PW. 1 Exh.8.(2) Bharatbhai Rupabhai Od, PW. 2 Exh. 22, (3) Imamsha Chandsha Diwan, PW. 3 Exh.23,(4) Rajaqbhai Chandbhai Belim, PW. 4 Exh. 24, (5) Himatsinh Lalubha Gohil, PW.5 Exh.26,(6) Ganpatsinh Samatsinh Chauhan, PW. 6 Exh. 27, (7) Rumalji Shivaji PW. 7 Exh. 30, (8) Pravinsinh Abhesinh Jhala, PW. 9 Exh. 32, (9) Rameshkumar Bhavanishanker Joshi, PW. 9 Exh. 34, and (10) Bhanushanker Chhaganlal Joshi, PW. 10 Exh. 35, to prove its case against the appellant. The prosecution had also produced documentary evidence, such as, the entry made in the station diary maintained at the police station regarding information received at Exh. 9, the report made by the Police Inspector to the Assistant Commissioner of Police regarding the information received from police constable Himatsinh at Exh. 10, the report prepared by P.I. Mr, Pathak indicating compliance of Sec. 50 at Exh. 11, intimation sent by the Police Inspector to the expert of F.S.L. that he should come to the spot for the purpose of preliminary examination of the substance found at Exh. 30, the report of the preliminary examination of the substance by the expert of F.S.L. at Exh. 14, memorandum enumerating the articles which were seized on the spot at Exh. 15, the grounds of arrest conveyed to the appellant at Exh. 16, the information given to the brother of the appellant regarding arrest of the appellant under the NDPS Act at Exh. 17, the arrest memo at Exh. 18, the information given by P.I. Mr. Pathak to the District Magistrate, Ahmedabad City under Sec. 58 of the Code of Criminal Procedure at Exh. 19, the complaint filed by Mr. Pathak at Exh. 20, the memorandum dated June 10, 2001 prepared and given by Mr. Pathak to the officer incharge of D.C.B. while handing over the articles seized for safe custody at Exh. 21, the panchnama prepared in the case Exh. 25, entry made by police constable Ganpatsinh Chauhan in the police station diary regarding the opium having been found from the possession of the appellant and also directing him to inform higher officers about the seizure at Exh. 28, entry made by police constable Ganpatsinh Chauhan in the station diary mentioning the articles seized during the course of raid at Exh. 29, muddamal forwarding letter sent to F.S.L. at Exh. 33, intimation received by P.S.I. DCB Crime Branch from F.S.L. indicating the receipt of sample for analysis at Exh. 36, forwarding letter dated June 22, 2001 with which the report of F.S.L. was sent at Exh. 37, production report of the appellant before the learned Metropolitan Magistrate, Court No. 11, Ahmedabad city dated June 11, 2001 at Exh. 39 etc., in support of its case against the appellant. After recording of evidence of the prosecution witnesses was over, the learned Judge had explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required by Sec. 313 of the Code of Criminal Procedure, 1973. In his further statement, the appellant had denied the case of the prosecution, but had not led any evidence in support of his defence that the case of the prosecution was false. However, the appellant had submitted written statement contemplated by Sec. 233(2) of the Code of Criminal Procedure, 1973 and claimed that he was falsely implicated in the case and, therefore, should be acquitted.