BHARATKUMAR BHIKHABHAI JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal under Sec. 374 of Criminal Procedure Code, 1973 is directed against the judgment and order dated 25-10-1988 passed by the Addl. Sessions Judge, Ahmedabad (Rural), Mirzapur in Sessions Case No. 49 of 1988 whereby the appellant was convicted for an offence under Sec. 2()(b)(i) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (which will hereinafter be referred to as 'the N.D.P.S. Act') and sentenced to 2 years R. I. and a fine of Rs. 5,000.00. in case of default to deposit the fine. to further undergo 6 months R. I.

(2.) The incident relates to 2-10-1987. At about 12-30 the P.S.I., Head Constable and Constable of Barvala Police Station noticed the appellant sitting on a stone on Bhavnagar-Barvala Highway. The appellant having seen the police felt scared. The, aforesaid police people caught hold of the appellant and found that he was having some substance in a red handkerchief, which was put in a polyethylene bag. The substance is alleged to be 250 grams of Ganja. The P.S.I, sealed 5 grams of Ganja separately in a packet as a sample to be sent to the Forensic Science Laboratory and the remaining substance was kept in a separate bag. The substance kept for sample was sealed by the P.S.I, and the remaining substance was separately sealed by the concerned P.S.I., and the appellant was arrested on the spot. The Panchanama and seizure Memo was prepared in presence of two Panchas and their signatures were also obtained. On 3-10-1987 the appellant was produced before the Court and on the very day he was bailed out. The appellant remained on bail throughout the period of trial. The appellant faced the Sessions trial on the basis of the charge-sheet Exh. 4 and on conclusion of trial he was convicted and sentenced, as aforesaid, for the offence under Sec. 20(b)(i) of the N.D.P.S. Act. Aggrieved from this judgment and order of conviction and sentence dated 25-10-1988 the appellant has preferred the present Appeal. It is given out by the learned Counsel for the appellant that in this Appeal the sentence was suspended and he was granted bail on 3-11-1988 by an order passed in Misc. Criminal Application No. 2468 of 1988.

(3.) The learned Counsel for the appellant has submitted that the Panchas have not supported the case of the prosecution and the Panchanama cannot be said to have been proved. In this regard he has invited the attention of the Court to the deposition made by the Panch witness Shivrajbhai at page 55 of the paper-book and other Panch witness Jayantilal at page 77 of the paper-book. The learned Counsel has also argued with reference to Secs. 50, 52. 55 and 57 of the N.D.P.S. Act and has submitted that there is a clear breach of the provisions contained in the aforesaid sections and, therefore, the conviction and sentence cannot be sustained in the eye of law and the appellant deserves to be acquitted. It has been submitted that the appellant was never told by the Police people that he was being arrested under N.D.P.S. Act and, therefore, the appellant did not get any opportunity to say that he may be taken to the nearest available Gazetted Officer or the Magistrate for the purposes of search. It has also been submitted that the Officer-in-charge of the Police Station did not affix any seal to the articles, which were kept in his custody as also the sample which was to be sent to the Forensic Science Laboratory and further that after the arrest and seizure, report of all particulars of such arrest and seizure had not been made to the immediate superior officer. The learned Counsel lor the appellant has placed reliance on a decision of Delhi High Court in the case of Rattan Lal v. State, reported in 1987 (2) Crimes 29 in which it has been held that it was a fatal lapse on the part of the prosecution when it failed to get the seized material and the samples preserved for examination of C.F.S.L. sealed with the seal of S.H.O. before it was deposited with him for safe custody as envisaged by Sec.. 55 of the N.D.P.S. Act. On the grounds, as urged aforesaid, the conviction and sentence has been challenged.