PRADEEP PARASNATH VARMA v. THE STATE OF GUJARAT

information and preliminary panchnama was drawn. Thereafter, P I Mr. CR.A/1111/2005 JUDGMENT Barot, PSI Mr. Chauhan and Goswami and other police personnel along with two panchas went near Chimanbhai Over-bridge. At about 4.00 p m, said scooter came from the opposite direction through the over-bridge and the same was intercepted. The scooter was driven by the appellant accused no. 1 and accused no. 2 – Ratilal Somabhai was pillion rider. When the appellant – accused was searched, two plastic bags were found containing opium. The weight of the opium was 1,985 Grams. In presence of panchas, samples were drawn. The same were duly packed and sealed. It is further the case of the prosecution that the opium was supplied by original accused no. 3 – Joseph Hirasing Christian and original accused no. 4 – Smt. Jenifer Joseph Christian. In connection with this offence, PSI Mr. I.K. Chuhan lodged the FIR and the offence was registered.

2.2. Police investigation was started. Statements of material witnesses were recorded. Samples were forwarded to Forensic Science Laboratory [FSL] for analysis. The contents of the samples reported to be opium by the FSL. After completion of the investigation, charge-sheet came to be filed, which was registered as Sessions Case o. 178 of 2003.

2.3. The Ld. Trial Judge framed charge at exh. 9 against 4 accused persons including the appellant – accused for the commission of CR.A/1111/2005 JUDGMENT offences punishable under sections 17, , 19 and 29 of the NDPS Act. All the accused did not plead guilty and claimed to be tried. Therefore, prosecution adduced its oral and documentary evidence. After the completion of the evidence, Ld. Trial Judge recorded further statements of the accused persons including the appellant – accused under section 313 of the Code of Criminal Procedure [Cr. P.C]. The appellant accused denied generally all the allegations levelled against him by the prosecution and stated that he was falsely implicated in this case.

3. After appreciating the evidence on record and after considering the arguments advanced on behalf of both the sides, the Ld. Trial Judge, recorded the conviction of the appellant - accused for the offence punishable under sections 17 (B) of the NDPS Act and awarded sentence as hereinabove referred to. However, 3 co-accused persons came to be acquitted. Hence, feeling aggrieved and dissatisfied with the order of conviction, appellant accused preferred this appeal.

4. We have heard the submissions of learned advocate Ms. Ahuja for the appellant – accused and Ld. APP Mr. M A Patel for the respondent – State and we have considered the record and proceedings of the trial Court in context of the submissions made on behalf of both the parties.

5. Learned advocate Ms. Ahuja for the appellant – accused CR.A/1111/2005 JUDGMENT submitted that the impugned judgment and order rendered by the Ld. Trial Judge for recording the conviction of the appellant – accused is contrary to law and evidence on record. It is submitted that after P.I. Mr. Barot received the information, he did not follow the mandatory requirements laid down under the Act in reducing into writing the information and forwarding the copy of the same to his immediate superior in its true perspective. It is vehemently submitted that even the mandatory requirements laid down under the Act regarding the sealing and packing of the samples have not been fully undergone. It has come in evidence that the samples contained slips wherein crime register number and Muddamal Pavti number were mentioned. It is submitted that the seizure panchnama was completed at 20.00 hours on 21/4/2003 and the first information report was lodged and came to be registered at 22.15 hours. That thus the offence came to be registered after the Muddamal articles were seized and the samples were packed and sealed. That thus it is highly doubtful as to how the C.R. No., and Muddamal Pavti No., came to be referred in the slips pasted on the packets of the samples. That such situation is admitted by P.I. Mr. Barot during the course of his testimony. That therefore, the entire case of the prosecution has become doubtful regarding the seizure. As per the case of the prosecution, opium was seized and the samples were drawn and they were packed and sealed and CR.A/1111/2005 JUDGMENT all other required procedures were undergone at the place of information i.e near Chimanbhai Over-bridge. That as per the seizure panchnama, all the required procedure came to be completed by 20.00 hours. Thereafter, the FIR came to be registered in police station at 22.15 hours. Therefore, the very existence of crime register number and Muddamal Pavti number on the sample packets clearly suggest that a false case was concocted against the appellant – accused. That even otherwise, relevant mandatory provisions of the Act have not been fully and truly complied with. There is a breach of mandatory requirements laid down under sections 42 and 50 of the Act. That the tampering of Muddamal cannot be ruled out.

5.1. It is submitted that as per serial no. 92 of the table attached to the NDPS Act, the quantity less than 25 grams is 'small quantity', but the commercial quantity of the opium is weighing 2.5 Kgs., and above. That in the instant case, as per the prosecution case, the weight of the opium seized comes to 1 Kg and 985 Grams. Therefore, in the instant case, the quantity was lesser than commercial quantity, but greater than small quantity and the punishment prescribed under section 17 (B) of the Act is RI for a term which may extend to 10 years and with fine which may extent to Rs.1 lac. That in the instant case, the Ld. Trial Judge awarded sentence of RI for 8 years and fine of Rs.40,000/-. That there is nothing CR.A/1111/2005 JUDGMENT on record that prior to his conviction the appellant – accused was indulging in activities of trafficking narcotic drugs. That the appellant came to be arrested on 21/4/2003 and during the trial he was in custody and came to be convicted on 01/04/2005 and till date he is in jail. That thus, since about 6 years the appellant is in jail. It is further submitted that the appellant is suffering from serious ailment of hernia. Alternatively, therefore, it is submitted that the sentence of RI for 8 years be altered to the period already undergone by the appellant and considering the poor financial condition of the appellant, the amount of fine be appropriately reduced.

5.2. Ld. Advocate Ms. Ahuja submitted that by judgment and order dated 01/04/2005 the Ld. Trial Judge recorded conviction of the appellant – accused, but acquitted 3 co-accused persons and the State has preferred Criminal Appeal No. 2298 of 2005 under section 378 of the Cr. P.C challenging the acquittal of 3 co-accused persons. It is submitted that 3 co-accused persons who are respondents in said appeal could not be served with the notices as yet and said appeal is yet not ready for final hearing. It is submitted that the appellant – accused is in jail since last 6 years, he is awarded sentence of RI for 8 years and if the Criminal Appeal No. 1111 of 2005 preferred by the appellant – accused is not heard till the Criminal Appeal No. 2298 of 2005 preferred by the State challenging the CR.A/1111/2005 JUDGMENT acquittal of the co-accused persons does not become ripe for hearing, the situation may arise that the entire sentence awarded by the Ld. Trial Judge to the appellant – accused may be over. That despite efforts made to get the respondents in the State appeal to be duly served with the notices, yet they could not be served. It is further submitted that case of the appellant – accused persons who came to be acquitted is totally different and can be very well distinguished. The result of this appeal either way is not going to cause any adverse effect upon the appeal preferred by the State challenging the acquittal of co-accused persons. The role attributed to them by the prosecution is different and the evidence can be distinguished qua those accused persons who came to be acquitted. Therefore, it was submitted that the present appeal preferred by the appellant – accused, who is convicted by the trial Court, be heard first in point of time.

6. Ld. APP Mr. Patel for the State vehemently opposed this appeal and submitted that the prosecution successfully proved its case beyond any reasonable doubt against the appellant accused. It is submitted that all the necessary mandatory requirements laid down under the NDPS Act have been fully complied with. There is no breach of any of the mandatory provisions. That there is no evidence worth the name that the C.R. No., and Muddamal Pavti Number were referred in the slips CR.A/1111/2005 JUDGMENT affixed on the samples at the place of seizure.

6.1. Ld. APP Mr. Patel submitted that it is true that the State has preferred Criminal Appeal No. 2298 of 2005 challenging the acquittal of 3 co-accused persons and though the appeal came to be preferred in the year 2005, as yet notices could not be served. It is, therefore, submitted that considering the fact that the appellant accused came to be convicted by the trial Court and is sentenced to undergo RI for 8 years and that since about 6 years he is in jail and thus he has already undergone 3/4th of his sentence, there may not be any objection in separating this appeal for early hearing and disposal.

6.2. Ld. APP Mr. Patel, vehemently opposing this appeal on merits, submitted that the appeal may be dismissed.

6.3. In view of the submissions made by learned advocate Ms. Ahuja for the appellant and Ld. APP Mr. Patel and considering the facts and circumstances of the case, especially the fact that since last 6 years the appellant is in jail in this case and he has almost undergone 3/4th of his sentence and further considering the fact that though the State appeal came to be preferred in the year 2005, the respondents are as yet not came to be served with the notices and the case of the co-accused persons, who came to be acquitted, is totally different than the case and evidence CR.A/1111/2005 JUDGMENT on record, so far as the present appellant – accused is concerned and his case can, therefore, safely be distinguished, the Criminal Appeal No. 1111 of 2005 preferred by the convicted appellant – accused is separated from other appeal and heard for final disposal.

7. We have considered the record and proceedings of the trial Court in context with the submissions made on behalf of both the parties. PI, Crime Branch, Ahmedabad, Mr. Barot is examined at exh. 49. During the course of his examination, he stated that on 21/4/2003 at about 14.10 hours when he was in his office, he received the secret information from his informant. Then he narrated the procedure about the information being reduced into writing and informing his immediate superior and calling 2 panchas and making of preparation for raid. According to him, he himself, 2 panchas and other police officers left the police station and went near Chimanbhai Over-bridge and after about half an hour, they saw a scooter proceeding near the bridge and the scooter was intercepted. He stated that the scooter was driven by the appellant – accused and co- accused Ratilal Somabhai was pillion rider. Then he stated that the appellant accused was informed that he was required to be searched and in presence of both the panchas, the accused was searched and two plastic bags containing the opium were found out. Then he narrated about CR.A/1111/2005 JUDGMENT preparing samples and packing the same. He stated that before the search of the accused, the requirements laid down under section 50 of the NDPS Act were duly followed and in support thereof, writing exh. 56 came to be produced. During the course of his examination, he identified Muddamal samples as well as the packets containing the remaining Muddamal. He further stated that on the packets of the samples, slips containing the signatures of both the panchas and signed by him were duly affixed. FIR was lodged in connection with the incident. He deposed that the offence was registered at 22.15 hours. The seizure panchnama was concluded at 20.00 hours. In his cross-examination, however, he admitted that on the sample, which is Muddamal article no. 6, the particulars regarding crime register no., names of the accused, their addressed, Muddamal receipt no., etc., have been written.

7.1. On behalf of the appellant, the contention was raised that when the Muddamal opium was seized and the samples were drawn and were packed and sealed by drawing the seizure panchnama, which came to be concluded at 20.00 hours and thereafter the FIR came to be lodged by PSI Mr. Chauhan and the offence came to be registered at 22.15. hours and, therefore, the reference of crime register no., and Muddamal Pavti no., on the sample creates serious doubt about the case of the prosecution. CR.A/1111/2005 JUDGMENT That such particulars could not have been there if the seizure had taken place as per the prosecution case i.e., at the place of seizure, because there is a gap of about 2 hours between the seizure and the registration of the offence. The time of seizure is reflected in the panchnama drawn at the time of seizure and FIR indicates the time of registration of offence. In view of such submission made on behalf of Ld. Advocate Ms. Ahuja, by order dated 13/11/2008 the Registry was directed to call for the Muddamal from the trial Court. Pursuant to said direction, Muddamal was received from the trial Court and was placed before us.

7.2. We have inspected 6 containers containing the Muddamal and even the Ld. Advocate for the appellant and Ld. APP inspected the same. Out of the 6 containers, there are 2 round containers with green lid and 2 round containers with blue lid containing samples drawn from the alleged Muddamal, 2 of which were sent to FSL for examination and 2 are reserved samples. Out of the sample containers, Muddamal mark “B- 1” which was sent to FSL for the examination, was opened in open Court. It was noticed that the slip pasted on the container contains details of crime register no., it does not contain signatures either of the seizing officers or of the panchas. On opening the container besides the sample Muddamal, a slip was found which contains details of the Muddamal CR.A/1111/2005 JUDGMENT including the details of crime register no., but did not contain the signatures of the panch witnesses or the seizing officers. However, it contains initials of Investigating Officer PI MOB DCB Ahmedabad. One rectangular container was also opened and it was found that there was a slip containing details of crime register no., and initials of IO PI DCB AHD, but not the signatures of panchas or any other officer. Slip pasted on the lid of the container contained details of crime register no., etc., but no signatures at all either of the seizing officer or of the panchas or the IOs are there. Appropriate order about the inspection of Muddamal was passed by us in this case on 20/11/2008.

8. Now the only short question is as to whether the crime register no., and Muddamal Pavti no., came to be written either on the packet containing the Muddamal or in the slip affixed on the packets at the time when the Muddamal was seized, packed and sealed or not. PI Mr. Barot in his testimony, when the packets were shown to him, admitted that the packets contained reference of crime register no., and Muddamal Pavti no., but he clearly stated that at the time of seizure, the slips containing signatures of both the panchas and his own signature were affixed on the packets containing the Muddamal. He categorically stated that the slip containing crime register no., and Muddamal Pavti no., CR.A/1111/2005 JUDGMENT were never prepared at the time of seizure of Muddamal. He stated that after the Muddamal samples were produced in the police station and the first information report was lodged and the offence was registered, the IO for the purpose of identifying the Muddamal, might have mentioned crime register no., and Muddamal Pavti no., on the containers containing the Muddamal. However, he stated that he cannot say as to when the I O would have written those numbers on the containers. However, he stated that when they were at the place of the information, he had inquired about the crime register number telephonically from the police station. Considering his entire testimony, there is no evidence whatsoever to come to the conclusion that at the time of seizure of the Muddamal and its packing and sealing, he had written the crime register no., and Muddamal Pavti no. , on the containers containing the Muddamal or that on the slips affixed on the containers. He categorically stated that at the time of seizure and packing of the samples, panch slips were affixed on the packets only containing signatures of both the panchas and his own signature. He furnishes the explanation that after the Muddamal samples and containers came to be produced in the police station and the offence came to be registered, the IO might have indicated crime register no., and Muddamal Pavti no., on the containers just for the purpose of identification. Therefore, merely because he deposed that telephonically CR.A/1111/2005 JUDGMENT he had inquired about crime register no., thereby it does not mean that at the time of seizure, it was he who had written crime register no., and Muddamal Pavti no., on the containers. The entire procedure regarding seizure, packing and sealing of Muddamal came to be over by 20.00 hours and subsequently after the lodgement of the FIR the offence came to be registered at 22.15 hours and at 22.15 hours the crime register no., came to be allotted to this case.

9. In the result, the submission made on behalf of the appellant that the slips on the Muddamal contained crime register no., as well as Muddamal Pavti no., and, therefore, the entire seizure process has become doubtful and the entire case of the prosecution deserves dismissal, has no merit. Considering the evidence on record, as appreciated in the impugned judgment by the Ld. Trial Judge and as considered above in this judgment, there is no evidence to come to the conclusion that those two numbers were either written on the containers at the time of seizure or that the slips containing those two numbers were affixed on the containers at the time of seizure.

9.1. As discussed earlier, considering the evidence of Mr. Barot exh. 49, he stated that at the time when the Muddamal packets were CR.A/1111/2005 JUDGMENT packed and sealed, at that time the slips containing the signatures of panchas were affixed on the packets. During the course of his examination, Muddamal packets were opened and shown to him and he identified those slips and those slips were taken on record from exhs. 92 to 96. Considering the FSL report exh. 84, it clearly transpires that 2 sealed parcels were received by the FSL. It is further reported that panchas slips signed by panchas were found from both the parcels i.e., parcels mark A/1 and mark B/1.

10. The sum and substance of above discussion is that there is nothing on record to come to the conclusion that at the time of seizure of Muddamal, the crime register number and Muddamal receipt number came to be written on the parcels. Moreover, considering the above discussions, it no-where transpires that there was any tampering with the Muddamal samples. Considering the deposition of the first informant PSI Mr. Chauhan exh. 24, he submits that he was also one of the members of the raiding party and in his examination he narrated the facts regarding the search and seizure as narrated by PI Mr. Barot examined at exh. 49. PSI Mr. Chauhan lodged the FIR exh. 25. Considering the evidence of first informant PSI Mr. Chauhan and PI Mr. Barot, it further transpires that at the time of search and seizure, photographs were taken which are CR.A/1111/2005 JUDGMENT produced at exhs. 97, 98 and 99.

11. Prosecution examined Rameshbhai Bodar at exh. 33 and according to his deposition, at the relevant time he was serving as Crime Writer Head in DCB Crime Branch, Ahmedabad and on 21/4/2003 while he was on duty, he received 6 sealed parcels from PSO Madhavsinh. He stated that he kept all the parcels in his safe custody.

11.1. Prosecution examined PSO Madhavsinh Gadhvi at exh. 37 and according to his deposition, on 21/4/2003 his duty was as PSO and he received the first information report of PSI Mr. Chauhan and the report of PI Mr. Barot, panchnama, etc. for the purpose of registration of the crime and at 22.15 hours the offence was registered. Muddamal was in sealed packets, which were handed-over to Crime Writer Head Rameshbhai Bodar, who is examined at exh. 33.

11.2. Prosecution examined Anilbhai Barot at exh. 30 and according to his deposition, at the relevant time he was serving as ASI in Local Crime Branch, Ahmedabad, and he was one of the members of the raiding party and then in his deposition he narrated the facts regarding the search and seizure of Muddamal and its packing and sealing. It is true CR.A/1111/2005 JUDGMENT that both the panchas of the seizure panchnama exh. 54, named Mohmed Sharif Qureshi and Babubhai Saiyed turned hostile and did not effectively support the contents of the panchnama. However, as discussed above, considering the evidence of the first informant PSI Mr. Chauhan, PI Mr. Barot and ASI Mr. Anilbhai, the facts regarding the secret information received and the raid and the recovery of Muddamal opium have been duly established. There is no reason whatsoever to discard the evidence adduced by the senior Police Officers. In the impugned judgment, this aspect of the matter has been elaborately dealt with by the Ld. Trial Judge and he has rightly come to the conclusion that despite the fact that both the panchas turned hostile, the prosecution proved its case beyond any reasonable doubt through the evidence of police witnesses.

11.3. Investigating Officer Mr. Saiyed is examined at exh. 74 and in his evidence, he narrated the facts regarding the investigation made by him.

12. On behalf of the appellant, grievance was made about non- compliance of mandatory provisions laid down under sections 42 and 50 of the NDPS Act. In this respect, considering para. 38 of the impugned judgment rendered by the Ld. Trial Judge, it transpires that the above contention was also raised in the trial Court on behalf of the accused. The CR.A/1111/2005 JUDGMENT Ld. Trial Judge, considering the evidence adduced by PI Mr. Barot and the station diary entry exh. 51, came to the conclusion that the provisions contained in sub-clause (2) of section 42 of the NDPS Act have been duly complied with and the information received by Mr. Barot was reduced into writing and the same was conveyed to his superior officer immediately. Re-appreciating the evidence of PI Mr. Barot exh 49, we do not find any illegality or irregularity committed by the Ld. Trial Judge in arriving at the conclusion that the mandatory provisions contained in section 42 of the NDPS Act have been complied with. Likewise so far as the compliance of mandatory provisions contained in section 50 of the NDPS Act is concerned, perusing para. 40 of the impugned judgment, the Ld. Trial Judge took into consideration the evidence adduced by PI Mr. Barot, first informant PSI Mr. Chauhan and ASI Mr. Anilbhai and the writing exh. 56 and came to the conclusion that before conducting the search, the appellant – accused was appraised with his rights that he may opt his search to be made either through any Gazetted Officer or Magistrate. Re-appreciating the above evidence and the document exh. 56, it can safely be said that the mandatory provision contained in section 50 of the NDPS Act has been duly complied with. Considering the impugned judgment, the Ld. Trial Judge, at length discussed and appreciated the evidence on record and came to the conclusion that the CR.A/1111/2005 JUDGMENT prosecution proved its case against the appellant beyond any reasonable doubt. In light of the entire above discussion made by us in this judgment and especially re-appreciating the entire evidence recorded by the Ld. Trial Judge, we are of the considered opinion that the prosecution proved its case beyond any reasonable doubt against the appellant – accused.

13. So far as the quantum of punishment fixed by the Ld. Trial Judge is concerned, as stated above, while convicting him for the offence punishable under section 17 (B) of the NDPS Act, the appellant – accused was sentenced to undergo RI for 8 years and fine of Rs.40,000/- and in default of payment of fine, RI for 6 months. The Ld. Trial Judge, while fixing the quantum of sentence, took into consideration that the opium found from the possession of the appellant was weighing 1 Kg and 985 Grams and the said quantity was though above small quantity, it is below the commercial quantity and, therefore, the maximum sentence prescribed under the NDPS Act is imprisonment for either description which may extend to 10 years and fine which may extend to Rs.1 lac. It was also considered that the commercial quantity comes to 2.5 Kgs and above. Keeping this aspect in mind and the statement made by the accused about his poverty and he was married having small children and his age, the Ld. Trial Judge awarded the sentence as mentioned above. CR.A/1111/2005 JUDGMENT

13.1. Alternatively, on behalf of the appellant, learned advocate Ms. Ahuja submitted that since last about 6 years the appellant is in jail in connection with this case and that he is suffering from serious ailment of hernia. It is, therefore, submitted that the period undergone by the appellant in jail in connection with this case may be his appropriate sentence of imprisonment and, therefore, sentence of imprisonment may be reduced accordingly. It is submitted that accordingly the amount of fine be reduced. We are of the opinion that the above grounds stated by the learned advocate Ms. Ahuja cannot be considered as a mitigating circumstance for reducing the quantum of sentence. About the ailment, no cogent medical evidence is forthcoming and even if the appellant is suffering from hernia, there is nothing that he is not getting proper treatment in jail. The Ld. Trial Judge rightly exercised his discretionary powers while fixing the quantum of punishment. There is nothing to show that the discretionary powers are exercised either arbitrarily or illegally and that the sentence imposed is harsh. Under such circumstances, we do not find any just and cogent ground to interfere with the order of sentence rendered by the Ld. Trial Judge. CR.A/1111/2005 JUDGMENT

14. In the result, the appeal deserves to be dismissed. For the foregoing reasons, the appeal stands dismissed. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.