STATE OF GUJARAT Vs. GOVINDBHAI VERSHIBHAI THAKOR

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant- State of Gujarat, challenging the judgment and order dated 11.01.1996, rendered by the learned Additional City Sessions Judge, Court No.10, Ahmedabad, in Sessions Case No.65 of 1995, whereby the respondent- original accused has been acquitted of the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short).

(2.) BRIEFLY stated, the facts of the prosecution case are that on 24.11.1994, PSI Mr. H.M. Kundalia (PW-7) was on duty at the Ellisbridge Police Station. At about 1:00 PM, he received secret telephonic information to the effect that a person wearing a blue coloured, full-sleeved shirt with a checked design and gray trousers, carrying a green coloured bag with black and white straps, standing near the staircase of Shefali Shopping Center, had brown sugar in his possession without a Pass, Permit or Licence. On receipt of this information, PW-7 informed his Superior Police Officers, that is, Police Inspector Mr. Gohil and the Superintendent of Police Mr. Desai. After making an entry, regarding the information in the Police Station Diary as Entry No.19 of 1994, PW-7 called two Panch Witnesses, namely, Rajesh Ambalal Panchal PW-1 and Ramchandra Porawal, who has not been examined. The Panch Witnesses were informed regarding the raid to be conducted and expressed their willingness to act as Panch Witnesses. As per the case of the prosecution, the first part of the Panchnama at Exh.6 was drawn at Ellisbridge Police Station. Thereafter, the two Panch Witnesses, PW-7 Mr. Gohil and Mr. Desai and other police persons went in a private vehicle from Ellisbridge Police Station towards Shefali Shopping Center. They stopped the vehicle on the road at some distance from Shefali Shopping Center. The raiding party then pointed out to the Panch witnesses and other members of the raiding party, a person who answered the description given to them by the secret informant. Thereafter, all of them went up to the said person, who was none other than the accused, and informed him that they would like to search him as they suspected that he had brown sugar in his possession. It is further the case of the prosecution that the accused was informed that he could get his search conducted in the presence of a Magistrate or a Gazetted Officer if he so desired, but he declined the offer. It is also the case of the prosecution that PW-7 offered to get his search done by the accused but that offer was also declined. Thereafter, a search was conducted of the person and bag of the accused. Nothing incriminating was found from the person of the accused. On search of the bag one bed-sheet, one towel, one empty plastic bag and another plastic packet containing 45 small packets were found. Out of those 45 small packets, one packet was opened, which was found to contain a whitish powder, suspected to be brown sugar. The accused, along with the material found in the search, was then taken to the Ellisbridge Police Station. The police called one Chimanbhai Manilal Bhavsar (PW-2) from "Ramankilal Jewellers" to weigh the packets. An expert from the Forensic Science Laboratory ('FSL' for short) PW-3 was also called to carry out the preliminary test on the contents of the packets. A photographer of the FSL (PW-4) was called to the Police Station, who took photographs. The test upon the substance in the packet was conducted in the presence of the Panch Witnesses, Police Officers and the accused. The preliminary test revealed that the contents of the packet were contraband, as per the NDPS Act. The case property, that is, 45 small packets were then kept in a sealed box. A slip was affixed on the box and a seal was applied. In another packet, the bag, empty plastic bag, towel and bed-sheet were kept and a slip was affixed and a seal applied. A detailed panchnama was drawn up. PW-7 Mr. Kundalia, who is the complainant and the Investigating Officer, gave his report at Exh.37, regarding the entry made in the Station Diary and also another report at Exh.40 under Section 157 of the Code of Criminal Procedure, 1973 for registration of the offence under the NDPS Act. According to the prosecution, after the case property was seized and sealed, an entry was made in the Muddamal Receipt Register, at Exh.39. The case property was handed over to the FSL in a sealed condition, against the receipt at Exh.34. The report of the FSL revealed that the substance sent for examination was a narcotic substance. As, according to the prosecution, there was a prima-facie case against the respondent- accused, a charge-sheet was submitted in the Court of the learned Metropolitan Magistrate. As the offence is exclusively triable by the Court of Sessions, the case was committed to such court by the learned Metropolitan Magistrate. The charge at Exh.1 was framed against the accused, who pleaded not guilty. Thereafter, the case was put to trial before the Competent Court.

(3.) HAVING appreciated the oral and documentary evidence, the Sessions Court acquitted the accused vide the impugned judgment and order, giving rise to the filing of the present appeal.