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TMI Blog2013 (2) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... Sec. 66 of the Prohibition Act on the basis of the information received by P.W. No. 6 - Shri Hirvatsinh Chhasatiya, Police Sub-Inspector, Kagadapith Police Station on 11-2-1990 at 1-02 p.m. that one person sitting near Platform No. 1, Stand No. 3 (Part-1), Platform Nos. 1 and 2, was having contraband articles with him. On receipt of such information, after intimating the same to P.W. No. 3 as per his instructions, the concerned Police Officer P.W. No. 6 summoned two panch witnesses and went to the aforesaid place to find out the correctness of the information so received and on his reaching at the said place, the person who was sitting nearby Platform No. 1 of S.T. Bus Terminus, Gita Mandir Road, Ahmedabad on the floor carrying/having two bags with him. Out of those two bags, one blue color bag was lying on his right side while one brown colour bag was lying on his left side. When the brown color bag was searched it was found to be containing one whisky bottle of Malta Brand beneath the clothes and one plastic bag below the whisky bottle. On opening the plastic cover, it was found to be containing brown-black colour substance and the same was opened in the presence of two panchas. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Vaghela, who carried contraband articles to F.S.L. and deposited with F.S.L. as per nondh at Exh. 19; P.W. No. 5-Selkhan Umarkhan Chauhan, Head Constable who received the contraband articles from F.S.L. after the analysis on 11-5-1990 and deposited the same before the Metropolitan Magistrate Court on 16th May, 1990; and lastly P.W. No. 6-Mr. Shri Girvatsinh Chhasatiya, Complainant and Investigating Officer who investigated the offence and charge-sheeted the respondent-accused before the competent Court at Exh. 25. 5. Over and above the oral evidence, the prosecution has also placed on record the documentary evidence in the nature of complaint vide Mark A; the panchnama of seizure of contraband substance-Exh. 12; Entry No. 17 recorded in Station Diary-Exh. 15; Entry No. 23 of Station Diary-Exh. 16; Muddamal Receipt-Exh. 17; Report of P.S.O. dated 11-2-1990-Exh. 18; Forwarding letter of P.S.I., Kagdapith Police Station, addressed to F.S.L.-Exh. 19; Receipt of muddamal articles received by F.S.L.-Exh. 5; the forwarding letter of F.S.L.-Exh. 6; Opinion of F.S.L.-Exh. 7; Botanical Examination Report Exh. 8; Copy of F.S.L. with preliminary opinion-Exh. 9; Entry in the Station Diary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the learned trial Judge failed to consider the fact that even if there is any lapse in the procedure of seizure or custody of muddamal articles, when there is no iota of evidence to the effect that the respondent accused was falsely involved or there is any enmity between the officer and the accused and so, the learned trial Judge ought to have convicted the respondent-accused as he was in possession of the contraband articles and as Investigating Agency has observed all the procedural aspects as laid down in Secs. 41 to 50 of the said Act in its letter and spirit. Even otherwise, as per the decision of this Court, the provisions contained in Secs. 41 to 50 of the Act are held to be directory in nature, and therefore, even if there is any breach or non-compliance of any of the provisions as laid down under the said Section, then also it would not be fatal to the case of the prosecution. Based on these submissions, it is urged that looking to the evidence on record, there were no chances of substituting or replacing the muddamal articles and further, no prejudice has been caused to the respondent-accused because of any failure to observe any provision on the part of the Inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof which reads as under: 4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. P.W. 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Sec. 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. 9.1. Shri Gadhvi, learned Advocate appearing on behalf of the accused has further submitted that while applying the proposition laid down in the case of Megha Singh (supra), the Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his intervening period of five hours, contraband articles were lying open on the table of the P.S.I. in the police station. There is no evidence on record as to how many persons other than the P.S.I., accused and P.W. No. 1 were present or all of them were present in the police station itself from this intervening period continuously. We may not be so technical that because of non-examination of second panch of seizure panchnama as one of the factors against the prosecution but we are of the definite opinion that there should be a positive evidence that during all these intervening period, the second panch was present but unfortunately, there is no evidence to this effect at all. In the cross-examination, P.W. No. 1, in terms, admitted that he had gone out of police station for three to four times for attending his business of bookstall in addition to attending two to three natural calls. During all these intervening period, contraband articles seized were lying in open, unattended, unprotected and unsealed condition on the table of P.S.I. Needless to say that the procedure prescribed for immediate sealing of the seized articles is to ensure safety and prevention from tampering wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself has not been done properly and coupled with the fact that when the safe custody of the same is not free from doubt, no reliance on the report of the F.S.L. can be placed and such report is of no avail to the prosecution to seek conviction. 17. In the matter of seizure, the prosecution is required to establish the observance of the provisions contained under Sec. 52A of the Act (amended by Amendment Act No. 2 of 1989) and more particularly, the procedure as referred in sub-sec. (2) thereof which reads as under: (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Sec. 53, the officer referred to in sub-sec. (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-sec. (1) may consider relevant to the identity of the narcot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Special procedure under Sec. 55 of the Act has been envisaged to avoid tampering and also to avoid false implication. If the provisions included in Sec. 55 of the Act are not complied with, it would definitely create doubt in the prosecution case. We have not found any explanation in the evidence for non-compliance of provisions contained in Sub-sec. (2) of Sec. 52A of the Act and Sec. 55 of the Act, and therefore, the same would cause prejudice to the respondent-accused entitling him to acquit which has rightly been done by the learned trial Judge in the present case. 21. We have also noticed and found that the police inspector of the police station concerned, though received information of serious offence within the area of his jurisdiction for which he was required to investigate further, did not do anything further than just to reach the spot and left the scene of offence without bothering to do anything further and after instructing the concerned P.S.I, to deal with the situation, he immediately left the scene of offence. The concerned P.I, of the police station has not even cared to affix seal on the seized articles and even did not see to it that it is kept in safe cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Ajmer Singh (supra), considering the earlier decisions of the Hon'ble Supreme Court in the case of Madan Lal v. State of H.P., reported in: 2003 (7) SCC 465 (Para 16) and in the case of State of H.P. v. Pawan Kumar, reported in 2005 (4) SCC 350 (Para 11), the Hon'ble Supreme Court has observed and held that Sec. 50 of the N.D.P.S. Act only applies in case of personal search of a person and it does not extend to search of a vehicle or a container or a bag or premises. It is further observed and held that a bag, brief-case or any such article or container etc., can under no circumstances, be treated as body of a human being. In the present case, as the search was of a bag, it does not come within the ambit of Sec. 50 of the N.D.P.S. Act. Under the circumstances, the aforesaid contention is required to be rejected outright. 23. Relying upon the decision of the Hon'ble Supreme Court in the case of Megha Singh (supra) as well as this Court in the case of Yusuf Taja Moriya Muman (supra), it is submitted by Shri Gadhvi, learned Advocate appearing on behalf of the accused that as in the present case, P.W. No. 6, who himself was the complainant, also investigated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the case and the article seized from the accused was narcotic drug. However, the accused could not point out any circumstances by which the investigation caused prejudice or was biased against accused. The Hon'ble Supreme Court further observed that as P.W. No. 8 was not in any way personally interested in the case, and therefore, the Court is unable to find any sort of bias in the process of investigation, and consequently, the Hon'ble Supreme Court confirmed the conviction. Paragraph 2 of the decision of the Hon'ble Supreme Court in the case of S. Jeevanantham (supra) reads as under: 2. We heard the learned Counsel for the appellants. The Counsel for the appellants contended that P.W. 8, the Inspector after conducting search prepared the F.I.R. and it was on the basis of the statement of P.W. 8 the case was registered against the appellants and it is argued that P.W. 8 was the complainant and he himself conducted the investigation of the case and this is illegal and the entire investigation of the case is vitiated. Reliance was placed on the decision in Megha Singh v. State of Haryana, 1996 (11) SCC 709, wherein this Court observed that constable, who was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, inevitably, prosecution failed to establish its case beyond shadow of doubt, and therefore, the learned trial Judge has rightly acquitted the accused from the charges levelled against him under the provisions of N.D.P.S. Act and the Prohibition Act. 25. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. [See Ramesh Babulal Doshi v. State of Gujarat, 1996 (9) SCC 225 : 1997 (1) GLR 307 (SC)]. In the instant case, the learned A.P.P. has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 26. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280. Supreme Court has held as under: The powers of the High Court in an Appeal From Order of acquittal to reassess the evidence and reach its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal, and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon'ble Supreme Court in the case of Girja Nandini Devi v. Bijendra Narain Chaudhari, AIR 1967 SC 1124 and State of Karnataka v. Hema Reddy, AIR 1981 SC 1417. 29. On overall reassessment and re-appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned trial Judge for acquitting the accused. Suffice it to say that the learned trial Judge has given cogent and convincing reasons for acquitting the accused and the learned A.P.P. has failed to dislodge the reasons given by the learned trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge. Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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