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TMI Blog2024 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... n(A-1). Nothing significant could be elicited by the defence in the prolonged cross-examination undertaken from Manubhai(PW-1) and hence, there are no hesitation in holding that the evidence of Manubhai(PW-1) being the panch witness associated in the search and seizure effected from Anwarkhan(A-1) is reliable and trustworthy. Thus, it is well established that independent panch witness was associated in the search and seizure procedure. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected. The fact regarding the seizure of contraband narcotic drug, i.e., heroin/brown sugar weighing 2 kgs and 30 grams from the possession of Anwarkhan(A-1) has been duly established by the prosecution beyond all manner of doubt. The link evidence required to prove the sanctity of the sampling and transmission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be delivering it to a third person. Deepak Pareek(PW-2) jotted down the secret information, translated and converted it into a typewritten script and forwarded a copy thereof to his immediate superior officer. 3. Two panchas i.e. Manubhai(PW-1) and Amit R. Dantani were summoned to the NCB office, Ahmedabad where a preliminary panchnama taking their consent to participate in the proceedings was drawn. Deepak Pareek(PW-2) accompanied with other NCB officials and the panchas proceeded to ST Bus Stand, Kheda. The raiding party was divided into two groups. Upon reaching the bus stand at around 4:30 pm, they saw two persons, whose description was matching with the secret information, sitting near the public urinals of the bus stand. The officials observed that a bag was being held by one of the two suspects who handed the same over to the other and proceeded towards the exit gate of the bus stand. One group of the raiding team cornered the person who was holding the bag whereas, the second group followed the other person who was seen proceeding towards the exit gate of the bus stand. The first group after disclosing their identity to the suspect who was holding the bag, made enquiry abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... boratory, New Delhi(hereinafter being referred to CRCL ). After analysis, a report was received to the effect that the samples gave positive test for presence of ingredients of brown sugar/heroin and Diacetyl Morphine contents were found therein. 6. A complaint came to be filed by Intelligence Officer, Vikram Ratnu(PW-3) against both the accused in the Court of learned Sessions Judge, Nadiad. The case was transferred to the Court of learned Additional Sessions Judge, Fast Track Court, Nadiad for trial. 7. Charges were framed against both the accused for the offences mentioned above who abjured their guilt and claimed trial. The prosecution examined 4 witnesses and exhibited 38 documents to prove its case. The accused were questioned under Section 313 of the Code of Criminal Procedure, 1973(hereinafter being referred to as CrPC ) upon which, they denied the allegations as appearing against them in the prosecution evidence and claimed to be innocent. After deliberating upon the submissions advanced on behalf of the parties and upon analysing the evidence available on record, the trial Court vide judgment dated 6th June, 2006 proceeded to convict and sentence the appellants in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial Court as well as the High Court have to be omitted from consideration. In this regard, he placed reliance on the judgment rendered by this Court in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 . 11. On these counts, learned counsel for the appellants urged that the appellants deserve to be acquitted of all the charges. Submissions on behalf of Respondents : - 12. Per contra, learned counsel appearing for the respondent NCB fervently opposed the submissions advanced by the learned counsel for the appellants. It was contended that the panch witness Manubhai(PW-1) was serving in the Income Tax Department and hence, he cannot be termed to be a partisan or a stock witness. Manubhai(PW-1) has fully supported the prosecution case in his testimony. The evidence of the Intelligence Officers, namely, Deepak Pareek(PW-2) and Vikram Ratnu(PW-3) is also trustworthy and reliable. They had no cause or motive to falsely implicate the accused appellants in a case involving recovery of huge quantity of narcotic drug heroin. The evidence of Deepak Pareek(PW-2) and Vikram Ratnu(PW-3) is unimpeachable. They identified the accused Anwarkhan(A-1) and proved the seizure of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance of the mandatory procedure provided under Section 42 of the NDPS Act. The said contention is on the face of record, misplaced. The secret information which was received by Deepak Pareek(PW-2) was to the effect that two suspects would be bringing contraband substance at the ST Bus Stand, Kheda which is a public place. 18. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected. 19. So far as the contention of learned counsel for the appellants that the search and seizure proceedings are vitiated on account of the non-compliance of Section 50 of the NDPS Act is concerned, the same is also noted to be rejected because admittedly, the seizure in this case was not effected during personal search of the appellant Anwar Khan(A-1). Admittedly, the contraband was being carried in a polythene bag held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence. 23. Now, coming to the case of appellant Firdoskhan(A-2) in Criminal Appeal No. 2044 of 2010. 24. It is not in dispute that the appellant Firdoskhan(A-2) was not apprehended on the spot or at the time of seizure. On a perusal of the panchnama(Exhibit-30), it is evident that Firdoskhan is not named therein. We find that even though Anwarkhan(A-1) was present with the raiding team from 4.30 p.m onwards, no effort was made by any of the NCB officials to make an inquiry from him regarding the identity of his companion who allegedly fled away from the spot. 25. The name of Firdoskhan(A-2) cropped up for the first time in the statement of Anwarkhan(A-1) recorded under Section 67 of the NDPS Act. However, we are duly satisfied that the sequence in which the said statement came to be recorded completely discredits the reliability thereof. Anwarkhan(A-1) was apprehended at the bus stand with the packet of narcotic drug at around 4:30 p.m. His signatures had been taken on the panchnama(Exhibit-30) prepared at 9:00 p.m. and thus, it does not stand to reason that the Intelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CB officials, the team of narcotic officers/officials was divided into two groups. However, it is not clear from the evidence of any of the four prosecution witnesses as to what was the composition of these two groups. Neither the panch witness Manubhai(PW-1) nor the Intelligence Officer Deepak Pareek(PW-2) identified Firdoskhan(A-2) as the accused who had escaped from the bus stand. In this background, we feel that the first time identification of Firdoskhan(A-2) by Vikram Ratnu(PW-3) during his evidence in the Court recorded on 14th February, 2005 i.e. more than two years from the date of incident, is dubitable. The evidence of Vikram Ratnu(PW-3) to the extent he claimed to have identified Firdoskhan(A-2) is neither reliable nor it gets corroborated by any other independent evidence and hence, his evidence deserves to be discarded to this extent. 31. There is no dispute that no contraband substance was recovered from the possession of appellant Firdoskhan(A-2). 32. Resultantly, the conviction of Firdoskhan(A-2) as recorded by the trial Court and affirmed by the High Court cannot be sustained and he deserves to be acquitted by giving him the benefit of doubt. 33. As a consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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