STATE OF GUJARAT Vs. BHURIYA ALIAS KANAIYALAL DALPATRAM

JUDGEMENT

(1.) The acquittal of the respondent of the offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 recorded by the learned Additional Sessions Judge, Rajkot vide judgment and order dated 30/07/1992 rendered in Sessions Case No. 49/91, is subject matter of challenge by the State of Gujarat in the present appeal, which is filed under section 378 of the Code of Criminal Procedure, 1973.

(2.) Mr. G.H.Sarvaiya, who was discharging duties as P.S.I., D.C.B., received an information on January 16, 1991 from Unarmed Police Constable Jagubha Nathubha that the respondent was in possession of charas and was selling the same near Virani High School, R.K.Chowk from Maruti Car bearing registration No. GCJ-207. On receipt of the said information, Mr. Sarvaiya took down the information in writing under sub-section (1) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the N.D.P.S. Act" for short) and sent a copy thereof to Deputy Commissioner of Police, Rajkot who was his superior official. Mr. Sarvaiya thereafter summoned two witnesses at D.C.B. Office requiring them to act as panchas and prepared first part of the panchnama. Thereafter he left the Office in the company of panchas and other police personnel to the place where the respondent was allegedly selling charas. Mr. Sarvaiya had also carried with him weighing scales. When Mr. Sarvaiya reached near Virani High School at about 23.30 hours, he spotted white coloured Maruti Car and therefore, after disclosing his identity, interrogated the respondent who was sitting in the driver's seat. Mr. Sarvaiya informed the respondent that he had right to be searched in presence of a gazetted officer or nearest Magistrate, but the respondent permitted Mr. Sarvaiya to be searched. The search of person of the respondent in presence of panchas resulted into recovery of a plastic bag containing small pieces of black coloured substance as well as 21 small plastic bags containing black coloured substance. The substance found was identified to be charas on seeing and smelling. The respondent was called upon to produce pass or permit authorising him to possess charas, but the respondent could not produce any document authorising him to possess charas. Charas found weighed 160 grams. Charas found was placed in polyethene bag which was in turn placed in a card board box. The said box was tied with twine and after placing slip containing signatures of panch witnesses, seal of "Police Sub Inspector, LCB, Madhy Saurasthra, Rajkot District" was applied on it. 21 empty polyethene small bags were also placed in another card board box and was sealed as mentioned above. The respondent was arrested on January 17, 1991 at about 1.30 A.M. Thereafter second part of panchnama was completed and rojkam was prepared in which signature of the respondent was also obtained. Mr. Sarvaiya prepared a forwarding letter and sent sealed articles to the Officer incharge of 'C' Division Police Station with the respondent through police constable Mr. D.R.Pandit. The officer incharge of 'C' Division Police Station recorded F.I.R. of Mr. Sarvaiya and after applying his seal on the samples, sent the samples to Mr. Sarvaiya so as to enable him to send the samples to Forensic Science Laboratory for analysis. Mr. Sarvaiya sent seized articles for analysis to Forensic Science Laboratory. The report received from Forensic Science Laboratory indicated that the substance sent and analysised was charas. On completion of the investigation, the respondent was chargesheeted for the offence punishable under section 20 of the N.D.P.S. Act. As the offence punishable under section 20 of the N.D.P.S.Act is exclusively triable by Special Court, the case was committed to District Court, Rajkot for trial. The learned Additional Sessions Judge, Rajkot to whom case was made over for trial, framed charge against the respondent at Exh.1 for the offence punishable under section 20 of the N.D.P.S.Act. The charge was read over and explained to the respondent who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Mansukhbhai Amarsinhbhai Kanani, P.W.1 at Exh.6, (2) Harisinh Premjibhai, P.W.2 at Exh.9, (3) Vijendraprasad Rajaram Pandit, PW.3 at Exh.10, (4) Somabhai Lakhabhai, PW.4 at Exh.11, and (5) G.H.Sarvaiya, PW.5 at Exh.15. The prosecution also produced documentary evidence, such as, panchnama of search of person of the respondent at Exh.7, the report prepared by Officer incharge of 'C' Division Police Station, Rajkot after production of the respondent before him and articles seized at Exh.12, report made by Mr. G.H.Sarvaiya, P.S.I. D.C.B., Rajkot City to officer incharge of 'C' Division Police Station, Rajkot at Exh.13, report made by the officer incharge of 'C' Division Police Station, Rajkot City to P.S.I. D.C.B. Branch, Rajkot city at Exh.14, complaint filed by Mr. G.H.Sarvaiya at Exh.16, information taken down in writing by Mr. Sarvaiya under section 42(1) of the Act at Exh.18, report made to the immediate superior official at Exh.20, report received from Forensic Science Laboratory at Exh.24 etc. in order to bring home guilt to the respondent. After recording of evidence of prosecution witnesses was over, learned Additional Sessions Judge questioned the respondent generally on the case and recorded his statement under section 313 of the Code of Criminal Procedure, 1973. In his further statement, the respondent denied the case of prosecution. However, no evidence in defence was led by the respondent.

(3.) On appreciation of evidence, learned Judge held that it was not proved by the prosecution that the respondent was found in possession of charas on January 16, 1991 contrary to the provisions of the N.D.P.S.Act and, therefore, learned Judge acquitted the respondent by the impugned judgment, giving rise to present appeal.