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Judgment
A.L. Dave, J.—This appeal arises out of the judgment and order dated 29.5.2008 rendered by the learned Additional Sessions Judge, 3rd
Fast Tract Court, Bhavnagar, Camp at Botad, in Special (N.D.P.S) Case No. 8/2006) convicting the appellant for the offences punishable under
Sections 8 and 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [""N.D.P.S. Act"" for short] and sentencing him to undergo
R.I for ten years with fine of Rs. 50,000/-, in default, S.I. for one year.
The facts of the case, in brief, are that on the basis of the information that the appellant-accused planted Ganja in the field of his ownership
situated on the way of Bhimdad-Meghvadiya village of Gadhada Taluka, District : Bhavnagar, on 24.3.2006 at 11.15 P.M., P.S.I. Mr. C.N. Huda
of Gadhada Police Station with other police officials visited the said agricultural field and seized two Ganja plants, weighing 4.450 Kgs, worth Rs.
26,700/-, allegedly planted by the appellant, without any pass or permit, after drawing a panchnama in presence of panch-witnesses. The samples
were also drawn thereunder and sent to F.S.L for analysis. The samples were analysised and F.S.L. Report indicated that the material seized was
ganja plants. On the basis of that report, charge sheet was filed against the appellant-accused and Special (N.D.P.S.) Case No. 8/2006 came to
be registered before the Sessions Court, Botad.
Charge was framed against both the appellants-accused at Exh.4 for the offences punishable under Sections 8 & 20(B) of the N.D.P.S. Act.
The appellant-accused pleaded not guilty to the charge and claimed to be tried.
3.1 After considering the evidence led before it, the trial Court came to the conclusion that the prosecution was successful in establishing the charge
levelled against the appellant for the offences punishable under Sections 8 and 20(B) of the N.D.P.S. Act and recorded conviction and imposed
sentence, as stated hereinabove.
We have heard learned advocate Mr. J.B. Pardiwala for the appellant, and learned A.P.P. Mr. Mengdey for the respondent-State. We have
also perused the record and proceedings.
The learned advocate for the appellant submitted that apart from other discrepancies, the case of the prosecution ought to have failed before the
trial Court only on account of defect in the sealing procedure adopted by the investigating agency at the time of seizure and sampling. He submitted
that the seizure and sampling would go to the root of the entire case and, therefore, other defects would be in addition to the major defect of
sealing and sampling. The learned advocate submitted that while sealing the contraband seized and samples drawn therefrom, the investigating
agency has not affixed the slip/s signed by the panch-witnesses on the outer cover of the packets, but, has placed the slip/s inside the seized
muddamal packets or the samples drawn therefrom. This would leave room for tampering with the muddamal seized because, without any dispute,
the seal affixed is that of the Investigating Officer. They, therefore, submitted that the trial Court ought to have given the benefit to the accused-
appellant and acquitted him. He submitted that this Court has taken similar view in a number of cases. He relied on the following decisions:
(i) Criminal Appeal No. 323 of 1996 [Jitendra @ Sanjaykumar Suryakant Desai v. State of Gujarat] decided on 17.8.2001 [Coram: B.C. Patel &
A.L. Dave, JJ.]
(ii) Criminal Appeal No. 287 of 1999 [Ganpatram Punmaram Vishnoi v. State of Gujarat] decided on 7.5.2002 [Kshitij R. Vyas & Ravi R.
Tripathi, JJ.]
(iii) Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas v. State of Gujarat 2006(1) GLH 409, wherein the above unreported judgments
have been referred to and relied on.
(iv) Sohanlal Kasiram Brahmin and Anr. v. State of Gujarat and Anr. 2007(1) GLH 131.
(v) Criminal Appeal No. 2088 of 2005 (Dipakkumar Babulal Patel v. State of Gujarat) with Criminal Appeal No. 2203 of 2005 (Vipulkumar
Jaydevbhai Barot v. State of Gujarat) decided on 25.9.2008 (Coram: A.L. Dave & J.C. Upadhyaya, JJ.).
The learned Additional Public Prosecutor has opposed this appeal.
We have considered the rival side submissions.
On perusal of the record, we find that the panchnama drawn at the time of seizure and drawing of samples clearly indicates that the slips signed
by the panch-witnesses were placed into the packets containing the contraband article, or the samples drawn therefrom. Thereafter the packets
were sealed, tied with a thread and wax-seal of the Investigating Officer was affixed. This is reflected in the F.S.L. Report as well. The FIR also
indicates the same situation.
8.1 Learned A.P.P. Mr. Mengdey does not dispute the above factual aspect regarding slip/s being inside the packet and not affixed on the packet
below the wax-seal.
In our opinion, the contention regarding laxity in following the procedure relating to sealing of the seized contraband article has some substance.
It is clear from the panchnama (Exh. 33), FIR (Exh.15) and FSL report (Exh.47), so also the deposition of the raiding officer (Exh.14) that the
correct procedure for sealing has not been followed to rule out the possibility of tampering with the contraband article seized or samples drawn
therefrom. It is found that after drawing the samples, at the time of sealing the samples as well as the remainder of the contraband seized, the slips
containing signatures of the panch-witnesses and the police officer were placed inside the packets and, therefore, the possibility of tampering with
the muddamal at the later stage and then again resealing the same by the investigating agency, cannot be ruled out. The very purpose behind
carrying out the search, taking of sample and sealing in presence of panch-witnesses is to ensure that there is no scope for any mischief in the
procedure required to be followed. At the time of sealing, slips containing signatures of panch-witnesses as well as the investigating officer are
affixed on the articles seized and a seal is applied over it, so that, in case of any attempt for tampering with the article seized, the seal would be
broken or the slip would be torn, which would immediately reveal such an attempt. If the slip is put inside as was done in the instant case, the
possibility of tampering cannot be ruled out. Under the circumstances, the procedure followed for sealing in the instant case cannot be said to be
proper and free from any possibility of tampering. The procedure, therefore, cannot be said to be beyond the scope of any reasonable doubt and
in that event, benefit must go to the accused.
This Court has taken similar view in (i) Criminal Appeal No. 323/1996, (ii) Criminal Appeal No. 287/1999, (iii) Navinkumar @
Shambhuprasad @ Bapji Chimanlal Vyas v. State of Gujarat 2006(1) GLH 409, (iv) Sohanlal Kasiram Brahmin and Anr. v. State of Gujarat
2007(1) GLH 131, and (v) Criminal Appeal No. 2088/2005 with Criminal Appeal No. 2203/2005.
Since the defect in sealing procedure while sealing the contraband article or drawing samples therefrom would go to the root of the prosecution
case and affect the investigation and the trial and since we have found such a defect in the procedure, we do not propose to deal with the other
aspects of the appeal.
Being conscious about the menace of narcotic drugs and psychotropic substance in the society, we only quote what has been observed by this
Court in Criminal Appeal No. 323/1996, as under:
It cannot be overlooked that society is facing the menace of drugs and persons involved in such drugs need to be appropriately dealt with. The
society needs to be protected from persons indulging in such activities. The Legislature has, for that purpose, enacted laws with stringent
arrangements. But for that purpose, the prescribed procedure has to be strictly followed by the Investigating Agency. Failure on the part of the
Investigating Agency may result in non-fulfilment of the purpose behind the enactments. The Apex Court, in the case of State of Punjab v. Baldev
Singh 1993(3) GLR 2483, in paragraph 31, observed as follows:
There is indeed a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off
because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the
procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against
the officials concerned, so that the laxity on the part of the investigating authority is curbed.
We only hope that the authorities concerned will take appropriate action to avoid such eventualities, as in the instant case.
For the foregoing reasons, the appeal is allowed. The judgment and order dated 29.5.2008 rendered by the learned Additional Sessions
Judge, 3rd Fast Track Court, Bhavnagar Camp at Botad, recording conviction of the appellant-accused for the offences punishable under Sections
8 and 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in SPL.(NDPS) Case No. 8/2006, is hereby set aside. The appellant
be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant.