STATE OF GUJARAT Vs. KISHANBHAI MAHESHBHAI TADVI

JUDGEMENT

(1.) THE present appeal has been preferred by the appellant- State of Gujarat against the judgment and order dated 31.12.1996, rendered by the learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No.130 of 1996, whereby the respondent- accused has been acquitted of the charges under Sections 8(c) and 22 of the Narcotic Drugs and Psychotropics Substances Act, 1981 ("NDPS Act" for short).

(2.) BRIEFLY stated, the case of the prosecution is that on 31.12.1995, the complainant H.K. Chauhan, Police Inspector, State Narcotic Cell, CID Crime, Ahmedabad, received secret information to the effect that a person wearing a red shawl, with the muffler tied around his head, is going towards Sabarmati Jail, Octroi Post and has Charas in his possession. The complainant reduced this information into writing and informed his Superior Officer. He called two Panch Witnesses and apprised them of the facts. The Panch Witnesses showed their willingness to act as such, during the raid. The first part of the Panchnama at Exh.18 was completed at the Police Station and the raiding party went in a police jeep to the spot indicated by the secret informant. The vehicle of the raiding party was stopped near Subhash bridge, after which they went on foot towards the Central Jail. A person answering the description given by the secret informant was standing there, but he tried to run away. He was apprehended by the members of the raiding party. This person, who was the accused, gave his name as Kishanbhai Maheshbhai Tadvi Patel and disclosed his address. As per the case of the prosecution, the accused was informed that he is to be searched for the possession of Charas and if he so desired, the search would be conducted in the presence of a Magistrate or a Gazetted Officer. He was also informed that he could conduct the search of the members of the raiding party. These offers were declined by the accused. Upon search of the accused, it was found that he was in possession of a plastic bag concealed below the red shawl which he was wearing. The bag contained ash- coloured pieces and powder, which emitted an odour akin to that of Charas. The raiding party was carrying a Weighing Scale along with an empty tin of "Ghee" to keep the muddamal. Police Constable Paragbhai Vajabhai weighed the contraband, which turned out to be 500 grams, the cost of which was approximately Rs.20,000/-. The contraband was put into the tin and a slip containing the signatures of the Panch Witnesses and Police Inspector was pasted upon it. The tin was closed and a cotton thread was tied around it. It was then wrapped in a paper and a seal was applied. A complaint was lodged with regard to above offences as Prohibition C.R. No.541 of 1995. The case was investigated by second Police Inspector Bhikhbahadur Budhesinh PW-7, who recorded the statements of the prosecution witnesses. The muddamal was sent to the Forensic Science Laboratory ("FSL" for short). The Report of the FSL indicated that the substance sent for examination was a narcotic substance i.e. Charas.

(3.) MR . K.L. Pandya, learned Additional Public Prosecutor, has submitted that the impugned judgment of the Trial Court is erroneous, inasmuch as it is evident from the material on record that the contraband was recovered from the person of the accused. There is no violation of the mandatory provisions of the NDPS Act, as is evident from the testimonies of PW-5 H.K. Chauhan, Police Inspector, State Narcotic Cell. This aspect is also reflected in the Panchnama at Exh.18. It is submitted that in this view of the matter, the findings of the Trial Court that there was a violation of the mandatory provisions of the NDPS Act, is not correct. It is further submitted that there is no doubt that the substance recovered from the accused is a narcotic substance, as is proved by the Report of the FSL at Exh.9. The muddamal was sent in a sealed condition to the FSL and was received back in a sealed condition, therefore, there was no tampering. On the above grounds, it is submitted that, as the Trial Court has failed to appreciate the oral and documentary evidence on record in proper perspective, which has resulted in an erroneous finding of acquittal, the appeal may be allowed.