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TMI Blog2006 (1) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the record of the case are as under: Mr. Krishnakumarsinh Chandrakumarsinh Chudasama, who was then Police Inspector, Anti-Terrorist Squad, was on duty in his office in the morning of July 19, 2001. When he was present in his office, his colleague i.e. PI Mr. A.S. Rathod received information from his informant that a person named Rajendra Sharma, who had put on off white coloured full sleeve bush-shirt and coffee coloured pant, was to come with quantity of brown sugar at Gate No. 3 of Civil Hospital, Ahmedabad between 10.30 AM and 1.00 PM along with two persons, out of whom one had tied many coloured cotton string on his wrist as well as put on biscuit coloured shirt and coffee coloured pant whereas another person had worn cream coloured lining shirt and biscuit coloured pant and was of sound physique. It may be mentioned that other particulars about two persons, who were to accompany Rajendra Sharma, were also given in the information. On receipt of information, PI Mr. Chudasama asked Police Constable Motibha to summon panch-witnesses. He and PI Mr. Rathod also informed their immediate official superior i.e. Mr. A.D. Chudasama, who was then the Deputy Superintendent of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Hospital, which is opposite State Bank of India. They were also pointed out by the informant of PI Mr. Rathod after which the informant left the place. Thereupon, necessary signals were flashed by PI Mr. A.S. Rathod and PI Mr. K.C. Chudasama to PI Mr. RI Patel. Therefore, PI Mr. Patel with other members of the raiding party rushed to Gate No. 3 to apprehend the accused. On seeing PI Mr. Patel and others rushing towards them, the accused made an attempt to abscond which was foiled. PI Mr. Patel and others introduced themselves to the accused and conveyed to the accused that an information was received that they were in possession of brown sugar. One of the accused, who was carrying bag was interrogated. On interrogation, he disclosed his name to be Rajendra Mangilal Sharma, residing at Village: Buda, Taluka: Malhargadh; District: Mandsaur; State of Madhya Pradesh. (He is the sole appellant in Criminal Appeal No. 660 of 2002.) Similarly, another person was interrogated and he disclosed his name to be Mansinh Gordansinh Kachhava of Village: Aradi; Taluka: Malhargadh; District: Mandsaur; State of Madhya Pradesh whereas third person on interrogation disclosed his name to be Mahamad Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. G.D. Sharma, who was one of the Scientific Officers discharging duties in FSL, Ahmedabad. Mr. G.D. Sharma conducted preliminary tests by taking out 5 Grams of brown sugar from each packet and opined that the substance analysed was brown sugar. Thereafter, from each packet two samples, each of 5 Grams of brown sugar were taken and placed in a plastic-tin. Thus, in all, 10 samples were taken and marked as A1, A2, etc. After closing the plastic-tin with its lid, each tin was wrapped in paper. The sample so wrapped was further wrapped with cloth, which was stitched and marked. Thereafter, slip bearing signatures of PI Mr. Chudasama, PI Mr. Rathod and panch-witnesses were placed on each sample and tied with twine after which seal, bearing impression of SSpl IGP (Ops), G.S., Ahmedabad , was applied. On demand, none of the accused could produce pass or permit authorising him to possess the brown sugar. Therefore, they were arrested and drawing of second part of panchnama was completed. PI Mr. R.I. Patel lodged his complaint before PI Mr. K. C. Chudasama. PI Mr. Chudasama forwarded the complaint of PI Mr. Patel, panchnama, muddamal, the three accused, etc. to Police Station Officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary evidence, such as: (i) complaint lodged by PI Mr. RI Patel, at Exh. 21; (ii) Government Resolution creating ATS in Gujarat State, at Exh. 22; (iii) Resolution prepared under Section 42 of the Act, at Exh. 24; (iv) Resolution indicating compliance of provisions of Section 50 of the Act, at Exh. 25; (v) panchnama of search of bag carried by accused Rajendra Sharma which resulted in find and seizure of brown sugar weighing 1837 Grams and 700 Milligrams as well as articles found during search of person of the accused, at Exh. 26; (vi) entry from Police Station Diary indicating that brown sugar was seized, at Exh. 49; (viii) forwarding letter addressed by PI ATS to PSO Shahibaug Police Station with which muddamal, panchnama, complaint, etc. were handed-over to PSO, at Exh. 50; (viii) entry from Anamati Register, at Exh. 52; (ix) report indicating that substance seized was analysed at the Police Station by Scientific Officer of FSL and found to be brown sugar, at Exh. 57; (x) entry made in the Movement Register indicating that information received was reduced into writing, at Exh. 63; (xi) report of analysis conducted by FSL, at Exh. 74 and (xiii) report by PI to Dy. I.G.P. made und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers was unusual or unnatural inasmuch as it was the duty of the Police Officer to apprehend the person who was found to be in possession of psychotropic substance. The learned Judge did not accept the argument advanced by the defence that an adverse inference should be drawn against the prosecution for non-examination of PI Mr. Rathod by holding that the accused were caught red handed with muddamal brown sugar and non-examination of PI Mr. Rathod was inconsequential. The learned Judge noticed that panch Lalitkumar was an independent witness who fully supported the case of the prosecution and, therefore, the evidence of Police Officers was worthy of acceptance. The learned Judge further held that all the three accused had travelled together and came to Ahmedabad for special reason, as a result of which they were liable to be convicted for commission of offence punishable under Section 21 read with Section 29 of the Act. In view of above referred to conclusions, the learned Judge has convicted the three appellants for commission of offence punishable under Section 21 read with Section 29 of the Act and imposed sentences referred to earlier by judgment dated July 26, 2002, giving r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 should be disbelieved. The learned Counsel of the appellants maintained that there are several discrepancies in the evidence adduced by the prosecution such as: (i) the complainant i.e. PI Mr. Patel states that State Bank of India was situated opposite Gate No. 3 whereas panch Lalitkumar says that State Bank of India was situated opposite Gate No. 1; (ii) the complainant says that the bag carried by original accused No. 1 was opened at the spot and it was found that it was containing 5 packets whereas panch-witness says that bag was for the first time opened at the office of ATS; (iii) the complainant has maintained that complete panchnama was written down on the spot but in cross, he has admitted that panchnama was not drawn completely at the gate and part was written at the office; (iv) though complete panchnama was not drawn near Gate No. 3 of Civil Hospital, the signatures of panch-witnesses were not obtained on incomplete panchnama; (v) the Police Officers examined in the case have stated that five tests were carried out by Scientific Officer of FSL to prima facie ascertain whether the substance found was brown sugar whereas the panch-witness says that only one sample was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems seized from the possession of the original accused No. 1. The learned Counsel has asserted that panch-witness in his testimony before the Court has maintained that the samples were sealed and one seal was applied on each plastic-tin whereas the report of the analysis indicates that on each plastic-tin, three seals were found and in view of the discrepancy in number of seals applied, the appellants should be acquitted because possibility of tampering with the samples is not ruled out. According to the learned Counsel of the appellants, the record does not show that any investigation was made by the Investigating Officer as to who was to take delivery of brown sugar, which in turn would indicate that the three appellants were not the real accused and were falsely implicated in the case and, therefore, they should be acquitted. What is maintained is that incomplete investigation is sufficient to exonerate the appellants and, therefore, the appeal should be accepted. It was argued that the PSO of Shahibaug Police Station did not apply his seal on the muddamal which was handed-over to him by PI, ATS, more particularly, when ATS has no Police Station of its own and, therefore, in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In the alternative, it was argued that PI Mr. K. C. Chudasama also received information from PI Mr. Rathod that the accused were to come near Gate No. 3 of Civil Hospital, Ahmedabad to deliver brown sugar, and on receipt of the same, PI Mr. Chudasama reduced the same into writing by mentioning the said fact in first or preliminary part of the panchnama which was drawn between 10.00 AM and 10.30 AM, and as PI Mr. K.C. Chudasama is a Gazetted Officer as well as an Empowered Officer within the meaning of Section 41(2) of the Act, the search and seizure cannot be regarded as illegal. The learned Counsel of the State Government stressed that Section 41(2) of the Act requires that a if Gazetted Officer, who is an Empowered Officer, receives information about commission of offence punishable under the Act, he should reduce the same into writing, and as information received was reduced into writing by PI Mr. K. C. Chudasama, all the mandatory provisions of Section 41 were complied with by him, as a result of which, the appellants are not entitled to any benefit of doubt on the ground that PI Mr. Rathod was not examined in the case by the prosecution. In the alternative, it was pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were near Gate No. 3 of the Civil Hospital, Ahmedabad, and as distance between Gate No. 1 and Gate No. 3 of Civil Hospital, Ahmedabad is hardly 300 steps, it would not be prudent for the Court to come to the conclusion that no incident had taken place or that the appellants were falsely implicated in the case, as is sought to be contended by the learned Counsel of the appellants. The learned Counsel asserted that discrepancies pointed out by the learned Counsel of the appellants in the evidence adduced by the prosecution witnesses are minor in nature and are on trivial matters and as they do not affect substratum of the prosecution case, the appellants are not entitled to any benefit of doubt at all. According to the learned Additional Public Prosecutor, minor discrepancies in the testimonies of the witnesses would on the contrary indicate that the witnesses were not tutored and had not stated parrot-like story before the Court but narrated the incident as they had seen and perceived and, therefore, their evidence should be accepted by the Court. The learned Additional Public Prosecutor for the State pointed out to the Court that chargesheet in the case against the appellants w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attention of the Court to the contents of panchnama and contended that the panchnama shows that two samples each of 5 Grams were taken from each packet, which is also referred to by PI Mr. K. C. Chudasama and, therefore, the mode of taking sample cannot be treated as defective. As far as difference in number of seals is concerned, according to the learned Additional Public Prosecutor, it is satisfactorily proved that after seizure was effected, samples were properly drawn and sealed and handed-over to PSO of the Shahibaug Police Station for safe custody and as the prosecution has led satisfactory evidence regarding movement of samples, the appellants would not be entitled to any benefit on the ground of difference in number of seals on the samples, more particularly, when the report of FSL indicates that the seals on the packets were found to be intact. The learned Counsel argued that the witnesses had deposed before the Court on the basis of recollection of facts and, therefore, discrepancy in number of seals should not be given undue importance. While dealing with the point that investigation was incomplete, it was asserted by the learned Additional Public Prosecutor that inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record with reference to broad and reasonable probabilities of the case. As noticed earlier, learned Counsel of the appellants has cited several decisions at the bar for guidance of the Court. In Prakash Chandra Pathak v. State of Uttar Pradesh AIR1960SC195 , explaining the value of precedents in criminal matters, the Supreme Court has made following amongst other observations in paragraph-8 of reported decision: Decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er deputing Police Constable Motibha to requisition services of two panch-witnesses, PI Mr. K. C. Chudasama as well as PI Mr. Rathod had informed DySP Mr. A.D. Chudasama about the information which was received by PI Mr. Rathod from his informant. The testimony of PI Mr. Chudasama further shows that at about 10.00 AM, Police Constable Motibha had brought two persons in the office who were willing to act as panch-witnesses. They were Jayesh Babulal Patel and Lalitkumar Fulchandbhai and thereafter, in the company of panch-witnesses, PI Mr. Chudasama and PI Mr. Rathod had gone to the office of DySP Mr. Chudasama. This fact becomes evident if one reads the testimony of complainant PI Mr. Patel, who has stated that he was asked by DySP Mr. Chudasama to come to his chamber and that when he had gone to the chamber of DySP Mr. Chudasama, all were present. Thus, when the information was conveyed by PI Mr. Rathod to PI Mr. Chudasama, PI Mr. Chudasama had every reason to believe that the accused had committed offence punishable under the provisions of the Act and was, therefore, empowered to detain and search the accused near Gate No. 3 of Civil Hospital, Ahmedabad, which is a public place un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the belief must be held in good faith; it cannot be merely pretence. The Supreme Court has observed that: S....To put it differently, it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the Section.... What is explained therein is that the words reason to believe suggest that belief must be that of an honest and responsible person based upon reasonable ground. 9.1 (iv) Applying above referred to tests to the facts of the instant case, this Court finds that in view of the information conveyed by a responsible colleague, namely, PI Mr. Rathod, PI Mr. K. C. Chudasama had every reason to believe the information which was conveyed to PI Mr. Rathod by his informant. There was direct appeal to his senses when information received by PI Mr. Rathod was conveyed by PI Mr. Rathod. There was no material on the basis of which PI Mr. K. C. Chudasama could have refused to believe the information conveyed to him by PI Mr. Rathod. It was natural for responsible officer like PI Mr. K. C. Chudasama to conclude or infer regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 10.30 AM. It is necessary to observe that neither the procedure nor method nor mode of reducing the information into writing is prescribed either under Section 41 or Section 42 of the Act or the Rules made under the Act. 9.1 (vii) In Abdul Salem Yusufbhai Shaikh v. State of Gujarat 2003 (2) GLR 1643 an information was received by Police Inspector, Narcotic Cell that one person named Abdul Salem Yusufbhai Shaikh, resident of Jumma Masjid, Navsari was selling charas. That information was not reduced into writing either in the Station Diary or in the Register which was being kept and maintained for taking down such information. The Police Inspector in his deposition did not state that he had reduced that information into writing but mentioned that on receipt of the information he had informed about that in writing to the DySP of Narcotic Cell. In that case, it was found that the report under Section 42(2) of the Act was made by Police Inspector to his immediate official superior where the information received was stated. This has been construed by the Division Bench to mean that the information received by Police Inspector was reduced into writing, as according to the Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en PI Mr. Rathod had complied with the provisions of Section 41(2) of the Act. Complainant PI Mr. Patel and PI Mr. K.C. Chudasama have categorically stated that they had seen PI Mr. Rathod making an entry in the Movement Register though they have said that they were not aware about the contents of the said entry and / or were not knowing whether the information received by PI Mr. Rathod was mentioned in the entry. The entry made by PI Mr. Rathod in Movement Register is proved by Investigating Officer PI Mr. Vaghela. During the course of his examination-in-chief, PI Mr. Vaghela produced Movement Register maintained and kept at ATS Office. After looking at page No. 6 of the said Register, he has stated that Entry No. 100 dated July 19, 2001 made at 10.25 Hours was in the writings of PI Mr. A.S. Rathod and that he was conversant with the signature of PI Mr. Rathod. The assertion made by Investigating Officer Mr. Vaghela that he was conversant with signature of PI Mr. Rathod could not be demonstrated to be false during the course of his lengthy cross-examination. Section 47 of the Indian Evidence Act, 1872 inter alia provides that when the Court has to form an opinion as to the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue that PI Mr. Patel in paragraph 22 of his testimony has stated that delivery of brown sugar was to take place near Gate No. 1 of the Civil Hospital, Ahmedabad. It is also true that panch-witness Lalitkumar in paragraph-30 of his testimony has stated that the accused were arrested near Gate No. 1. However, the overwhelming evidence adduced by the prosecution would show that distance between Gate No. 1 and Gate No. 3 of Civil Hospital, Ahmedabad is hardly 300 steps. PI Mr. Chudasama has categorically stated in his testimony before the Court that all the three accused were arrested when they were near Gate No. 3 of the Civil Hospital. The fact that the accused were arrested when they were near Gate No. 3 of the Hospital is mentioned in panchnama as well as in the complaint which was lodged without loss of time. Even PI Mr. Patel, who is the complainant, has also stated that the accused were apprehended when they were near Gate No. 3. Even Exh. 50, which is report by PI Mr. Chudasama to PSO of Shahibaug Police Station, indicates that Gate No. 3 of Civil Hospital, Ahmedabad was the place where the incident had taken place. Similarly, report submitted under Section 57 of the Act to im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 5, 2001. It is difficult to believe that even before submission of chargesheet, muddamal would be destroyed. In this case, there are no muddamal sample bottles. It is relevant to notice that chargesheet in the case was submitted by the Investigating Officer on September 5, 2001 and muddamal was produced on the same day before the Court vide muddamal list, which is at Exh. 17. Muddamal produced before the Court has been correctly identified by Police Officers examined in the case. If muddamal had been destroyed, it would not have been possible for the Police Officers to identify the same before the Court. Therefore, there is no manner of doubt that entry regarding the destruction of muddamal relates to another case and not to this case. Merely because some mistake has been committed by the officer while maintaining Anamati Register, the learned Counsel of the appellants has made a mountain out of a mole and raised contention which has no factual basis at all. The learned Advocate, who conducted the trial on behalf of the accused before the Trial Court, did not raise such a point at all because, he knew very well that muddamal in the case was produced before the Court, as required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness, in paragraph 33 of his testimony, that sample of 10 Grams was taken out, would not indicate that mode of taking sample was defective. Further, the panchnama indicates that two samples of 5 Grams was taken from each of the five packets. This fact is also categorically and affirmatively stated by PI Mr. Patel and PI Mr. Chudasama in their respective testimony. On the facts and in the circumstances of the case, this Court holds that the expert from FSL had taken out sample of 5 Grams from each packet and tested whereas while preparing samples, two samples each of 5 Grams were taken from each packet and, therefore, the mode of taking sample cannot be said to be defective at all. 9.5 (i) The contention, that difference in number of seals on samples taken would indicate that there was possibility of tampering with the same and, therefore, reasonable benefit of doubt should be accorded to the appellants, has no substance. Before considering possibility of tampering with muddamal, it is the duty of the Court to ascertain whether sealing procedure adopted by the Police Officers concerned was foolproof or was defective and whether the samples were kept in safe custody before they re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had received muddamal as mentioned in pouti i.e. receipt. According to him, after receiving muddamal, he had kept the same in safe custody. What is mentioned by this witness before the Court is that on the next day i.e. on July 20, 2001, he had handed-over the five samples bearing Mark A/1 to E/1 to Constable Chhatrasinh Manubha to be delivered to FSL for analysis. In support of this assertion, the witness has produced Entry No. 47 made on page 20 of Anamati Register. A bare perusal of the said entry which is produced at Exh. 52 makes it evident that on July 20, 2001, Crime Writer Head Constable Popatji Hemtuji had handed-over muddamal to Constable Chhatrasinh Manubha to be delivered to FSL for analysis. The testimony of Police Constable Chattrasinh Manubha recorded at Exh. 58 makes it very clear that on July 20, 2001, when he was present in ATS Office, he was directed by PSI Mr. P. G. Vaghela to collect samples from Crime Writer Head of Shahibaug Police Station and obtained Ravangi Yadi as well as samples to be delivered to FSL for analysis. The witness has stated that accordingly, he had gone to the Shahibaug Police Station and was handed-over samples to be delivered to FSL for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In the said case, it was asserted by the Police Officer concerned that all the samples were packed separately and sealed with seal ST by putting three seals on each packet, but report of the Chemical Examiner indicated that the number of seals put on the sample was one. In the said case, it was further found that the investigation was not fair and honest and as possibility of another sample having been sent to the Chemical Examiner for analysis was not entirely ruled out, benefit of doubt was given to the appellant. Here, in this case, possibility of another sample having been sent to the Chemical Examiner for analysis is entirely ruled out and, therefore, no benefit can be given to the appellants on the basis of judgment relied upon by their learned Counsel. 9.6 The contention, that record of muddamal was not properly maintained and therefore, also, the appellants should be given benefit of doubt, is devoid of merits. This plea is essentially based on the premise that original muddamal was not produced before the Court. However, this Court has examined original record itself and finds that along with chargesheet original muddamal was also produced. It is true that Police Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 28(p h), the Supreme Court in Babubhai Odhavji Patel v. State of Gujarat, has held that Sections 52, 55 and 57 of the NDPS Act are directory. This Court does not find any serious violation of provisions of Section 55 of the Act because sealed samples were handed-over by PI Mr. Chudasama to PSO of Shahibaug Police Station and, thereafter, there was no occasion to take further samples from the sealed samples which were already handed-over to PSO of the Police Station. Having regard to the scheme envisaged by Section 55 of the Act, this Court is of the opinion that it was not necessary for the Police Station Officer of Shahibaug Police Station to apply his own seals on the samples received by him for safe custody and no benefit can be given to the appellants on the ground that provisions of Section 55 of the Act were not complied with by PSO of the Police Station. 9.9 The last submission, that the two appellants in Criminal Appeal No. 759 of 2002 could not have been convicted with the aid of Section 29 and therefore, their conviction should be set aside, has also no substance. It is relevant to notice that in the information, it was indicated that three persons were to come nea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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