Santosh Shivnath Mehta v. State of Gujarat

8. Ms. Rekha Kapadia, learned advocate for the appellant, submitted that out of 7 witnesses, all the panch witnesses have turned hostile and not CR.A/793/2007 JUDGMENT supported the prosecution case indicating involvement of the appellant in the commission of offence. Learned advocate submitted that on perusal of the deposition adduced by PW.6 Rajpalsinh, Police Sub-Inspector Exh.22, and Athabhai,investigating officer, PW.7 Exh.24 it becomes clear that the necessary procedure was not followed by the raiding party at the time of proceeding for the raid and even subsequently while seizing the muddamal and sealing the same for the purpose of sending it to the FSL. Learned advocate submitted that the appellant was not asked to have the search in the presence of a gazetted officer or Magistrate as laid down in section 50 of the NDPS Act, and, therefore, there is breach of section 50 of the Act and benefit of the same is required to be given to the appellant. Learned advocate further submitted that even the provisions contained in sub-section 2 of section 42 has not been followed by the raiding party and as per section 57, the officer concerned is required to send report of the raid to the higher officer within 48 hours after the arrest or seizure of the muddamal article from the appellant. The aforesaid procedure was also not followed by the raiding party. Learned advocate further submitted that as the mandatory provisions contained in section 42, 50, 55 and 57 are not complied with, the appellant is required to be exonerated in view of a catena of decisions rendered by the Apex Court as well as by this Court.

9. On the other hand, learned APP representing the State submitted that the prosecution has followed CR.A/793/2007 JUDGMENT the entire procedure in a most meticulous manner and even after carrying out the raid and seizure of the muddamal article from the appellant, the sealing procedure was followed in a scrupulous manner. It is also reflected in the deposition adduced by PW.6 Rajpalsinh Exh. 22 and the deposition of the Investigating Officer Athabhai PW.7 Exh. 24. On perusal of the documentary evidence and detailed report of FSL vide Exh.33, it becomes clear that the contraband article which was recovered from the possession of the appellant was Ganja within the meaning of NDPS Act and considering the fact that Ganja weighing 7 kgs 150 gms was recovered from the possession of the appellant, he was rightly imposed the sentence of rigorous imprisonment of 5 years and fine of Rs.50,000/-, i.d. further rigorous imprisonment for one year, and no interference is called for in the judgment rendered by the learned trial Judge and the appeal requires to be dismissed.

10.I have heard learned advocate Ms. Rekha Kapadia for the appellant and Mr. Bhate, learned APP for the State. This Court has also undertaken a complete and comprehensive appreciation of all vital facts of the case and the entire evidence on record with regard to the broad and reasonable probabilities of the case. The prosecution has examined 7 witnesses in order to prove the inextricable involvement of the appellant in the commission of offnece punishable under section 20.B of the NDPS Act. Out of 7 witnesses, the panch witnesses have turned hostile. Therefore, the entire case of the prosecution clinges on the deposition adduced by PW.6 Rajpalsinh CR.A/793/2007 JUDGMENT Exh.22 and Athabhai L Chaudhary, PW.7, Exh.24. On perusal of the deposition adduced by Rajpalsinh, it becomes clear that the raid was carried out on

29.05.05 and during the raid, when the appellant was about to leave the house in which he was staying, he was caught red-handed and on the search of bag being carried out by the raiding party, he was found in possession of contraband article weighing admeasuring 7 kgs and 150 gms. He has further deposed in his testimony that as the appellant was not having necessary permit to keep the contraband article with him, he was informed that he can be searched before a gazetted officer or a Magistrate but he refused and, therefore, seizure panchnama was drawn in the presence of panchas. During the search of his bag, Ganja weighing 7 kgs 150 gms was found in his possession. He has narrated as to in what manner the muddamal article which was recovered from the appellant was weighed in the presence of panch witness. After weighing the muddamal article, a sample of the seized article weighing approximately 25 gms was taken out from the muddamal article and it was sealed in the presence of panch witness for sending the same to FSL. A reserve sample was also kept in another plastic bag and the plastic bag was kept in cloth bag and thereafter the sealing procedure was done in the presence of panch witness. Panchnama with regard to the seizure and sealing procedure was done in the presence of panch witnesses.

11.The deposition adduced by Athabhai, PW.7 Exh.24 is also with regard to the raid and the manner in which CR.A/793/2007 JUDGMENT the raid was carried out by the raiding party. On further perusal of the deposition adduced by him, he has also mentioned as to the manner in which the muddamal which was seized was sealed in the presence of the panch witnesses. However, the detailed procedure of the sealing of the muddamal has not been narrated by this witness in his deposition. I have also perused the documentary evidence i.e. the panchnama of the raid and seizure of muddamal article which is at exh.10/C. On perusal of the panchnama at Exh,10/C it becomes clear that the muddamal which was recovered from the possession of the appellant was sealed in the presence of panch witnesses. While sealing the muddamal article, slips containing the signature of the panch witnesses were also placed therein, and thereafter it was sealed and rubber stamp of police sub- inspector, Mundra, Kachchh was placed on the muddamal article seized in the presence of panch witnesses. Likewise, panchnama produced at exh.16 also mentioned about the sealing procedure wherein the muddamal was seized in the presence of panch witnesses and after completing the formalities of sealing, the seal of the police sub-inspector, Mundra was placed on the seized muddamal. The muddamal article was sent to FSL for analysis and the report given by the FSL is also carefully perused by me. Considering the documents at Exh.29/C, the muddamal which was received by FSL has been elaborately narrated therein. Two muddamal packets having marks 'A' and 'D' were received by the FSL whereon the seal of police Sub-Inspector, Mundra was placed on both the packets marked 'A' and CR.A/793/2007 JUDGMENT 'D'. It was further mentioned that three seals were also placed on the packets marked 'A' and 'D' which was received by FSL. Thus, on perusal of the deposition adduced by Rajpalsinh, PW.6 Exh.22 and Athabhai, PW.7 Exh.24, it becomes clear that they have not stated in their deposition about the complete sealing procedure as well as the placing of the seal of PSI, Mundra and well as three different seals on packets marked 'A' and 'D'. In view of a catena of decisions rendered by the Apex Court as well as by this Court, if the sealing procedure is not fool-proof or there is any defect in the sealing procedure, then it would give rise to tampering of the muddamal articles and tampering of muddamal article cannot be ruled out.

12.Considering the facts and circumstances of the case, I am of the view that since the sealing procedure was defective, the benefit of the same is required to be given to the appellant as the provisions under the NDPS Act are very stringent and they are required to be followed in a most scrupulous manner. Considering the ratio laid down in the case of GOPILAL SHRIRAMJI JAT v/s STATE OF GUJARAT [Criminal Appeal No. 568 of 2000], this appeal requires to be allowed on the ground of defective sealing procedure.

13.Even otherwise, if we consider the other provisions of the NDPS Act, the prosecution has not established that mandatory provisions contained in sections 50, 53 as well as 55 are followed in a scrupulous manner. Be that as it may, since the appeal is CR.A/793/2007 JUDGMENT required to be allowed on the short ground of defective sealing procedure, I am not entering into detailed discussion on the breach of other mandatory provisions committed by the prosecution in the present case.

14.For the foregoing reasons, the judgment and order

21.09.2006 passed by the Special Judge, Fast Track Court No. 2, Bhuj-Kachchh in Special Case No. 59 of 2005 is quashed and set aside. The appellant be set at liberty if not required in any other case.

15.The appeal stands allowed accordingly. mathew [H.B.ANTANI, J.]