RAVISHANKAR BHAGVATIPRASAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both the aforesaid dicta of the Constitution Bench, in State of Punjab Vs. Baldev Singh - (1999) 6 Supreme Court Cases 172, have to be kept present before the eyes, not only by the Courts, but by the Investigating Agencies too. They have also been read before us in this Appeal, arising from the Judgment and Order dated 3/07/1995, rendered by the learned Sessions Judge, Surat, in Sessions Case No. 121 of 1994. The appellant herein, being the accused in the Sessions Case, came to be charged and tried for being found in possession of 1800 Grams of charas, without permit, on the platform portion of a shop in the name and style of Anisha Auto Parts in Nanwala Complex, Hoti Bungalow area, Surat.

(2.) It was the prosecution case, before the learned Sessions Judge, that on 1 5/03/1994 during the evening time, Police Inspector of Chowk Bazaar police station, Mr. Mohammedsadiq Suleman Khara was nearby Variavi Market Police Chowky when he received the information that one person wearing a shirt with cream colour design and a pant with black checks was sitting at the aforesaid place with charas and was waiting for some one. This resulted in calling two panch witnesses, explaining them the information and proceeding towards the place of incident in the company of PSI Mr. Vyas, Mr. M.R. Chavda, Mr. Rahul, Mr.Borse, Head Constable Jayvant, and police constables, Ramchandra, Rajendrasinh Jagatsinh. On seeing the place it was noticed that the person with the description as aforesaid was sitting on the platform (Otta portion) of Nanwala Complex with a handbag placed on his shoulder resting on his legs. He was therefore asked to wait and tell his name and address. He informed that he was Ravishankar Bhagwatiprasad Mishra, the accused. He was informed about the information received by the aforesaid officer. He was asked whether he wanted to be searched in presence of a Magistrate or a Gazetted Officer and he replied that he did not want to do so. Thereupon all the persons including the P.I. were searched by the panch witnesses in the presence of the accused and nothing could be noticed or found from their person. On a search being carried out on the person of the accused, it was found that there was a plastic bag in the cotton handbag of yellowish colour. From the said polythene bag, a substance, blackish in colour and smelling charas, was noticed. Therefore weights and measures were called for from the nearby Provision Store and on weighing the substance, it was found that the substance was 1800 grams in weight. The accused informed that he did not have any pass or permit for keeping the substance with him. In the meantime, one Mr. Champaneria of Forensic Science Laboratory, Surat reached the place of incident and upon seeing the substance he informed that apparently it appeared to be charas and that it should be sent to Forensic Science Laboratory, Ahmedabad, for its analysis. The substance was in the form of small and big sticks, oval in shape. A Panchnama with regard to the incident was made. A paper slip containing the signatures of the panch witnesses and the Police Inspector was placed in the polythene bag along with the substance which was found therefrom. That was wrapped in a plastic bag and placed in the cotton bag. Tieing the strings on the cotton bag and affixing the paper slip containing the signatures of the panch witnesses and the Police Inspector, seals were affixed. Seals were affixed at three different places and they were of Police Inspector, Chowk Bazaar Police Station. After informing the higher authority, the Police Inspector, sent complaint to the concerned police station. A Fax message was also sent to the State CID Crime Branch, Ahmedabad. Soon thereafter the substance so sealed was sent for its chemical and forensic examination at the Forensic Science Laboratory, Ahmedabad and upon the receipt of the report from the said laboratory stating that the substance was charas, the case was sent for trial before the learned Sessions Judge. At the conclusion of trial, the learned Sessions Judge convicted the accused (appellant herein) of the offences punishable under Section 20 (b)(2) of the Narcotic Drugs and Psychotropic Substances Act, (`NDPS Act' for short), and sentenced to undergo rigorous imprisonment for a period of 12 years with fine of Rs. 100000, in default to undergo rigorous imprisonment for a period of one year. This conviction and sentence have been subjected to challenge in this appeal. At this stage, we might note the defence of the accused as Mr. N.M. Kapadia, learned advocate appearing for the accused, before us, read the same. The written defence statement was given before the learned Sessions Judge after the examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, was over. It has been asserted by the accused that the accused was falsely implicated. He has referred to his bail application and affidavit, Exhibits 31 and 32, where, at the earliest, he came out with the case that on account of real offender Dinesh Tiwari and one more unknown person having escaped, the accused has been falsely implicated, only on doubt, on account of the fact that the accused was treated as unknown person accompanying said Dinesh Tiwari. Accordingly, on 12-3-1994, the accused was called and kept in police custody. Thereafter one Harnarain Pandey was also detained as a suspect and his statement was recorded. According to the accused he was believed to be the main offender in respect of the offence in question. It was asserted that he was probably arrested on 15-3-1994 and thereafter he was produced before the concerned Magistrate on the next day. The cause of his arrest was made known to him. After obtaining order of remand from the Court Dinesh Tiwari was apprehended, however, since there was no evidence against him he was discharged. The accused has denied the incident in question. He has asserted that the alleged complaint was recorded subsequently and that the muddamal charas was thrown away by Dinesh Tiwari and another unknown person and they ran away. The police used to visit the house of the accused in search of Dinesh Tiwari, and since the accused was staying with Dinesh Tiwari he was taken to the police station for rendering assistance to the police in tracing out said Dinesh. Inspite of the fact that order of remand was obtained from the court, the accused was not taken to Uttar Pradesh, but the police went there in a private vehicle with Harnarain Pandey and has falsely implicated the accused as the main offender with regard to the substance in question. It is his case that since Dinesh was staying with him he was falsely implicated on mere presumption about he being an accomplice of Dinesh.

(3.) The learned Sessions Judge examined the prosecution evidence and the defence and upon appreciation of evidence came to the conclusion that the incident in question did happen and the accused was vitally concerned in the incident that happened. The prosecution examined Rameshbhai Dhamjibhai Patel PW 1 Ex.13; Ghanshyambhai Amarsinhbhai Patel PW 2, Ex.15; Maheshchandra Chhabildas Champaneria, an Expert from Forensic Science Laboratory at Surat PW 3, Ex.16; Pravinbhai Balubhai PW 4, Ex.18 who was concerned with weighing muddamal charas and who was treated hostile; Indravadan Balkrishna Vyas, PSI, PW 5, Ex.19; Mohammed Sadiq Suleman Khara, P.I., PW 6, Ex.20; Bipinbhai Davda, Expert from the Forensic Science Laboratory PW 7, Ex.23; Mahendrasinh Ratnasinh Chavda, the Investigating Officer, PW 8 Ex. 29. The prosecution also placed reliance upon Panchnama Ex. 14; Complaint Ex.21; F.S.L. Report Ex.24; Botanical report Ex.25; the rough notes of the Expert from FSL, Ex.27; and the worksheet, Ex28.