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Judgment
A.L. Dave, J.—Learned advocate Mr. Agrawal seeks permission to delete respondent No. 2 from the cause title. Permission as prayed for is granted and name of respondent No. 2 shall stand deleted.
The appellant challenges the judgment and order dated 21.7.2009 rendered by Additional Sessions Judge, Ahmedabad (Rural) at Viramgam in Special NDPS Case No. 1 of 2007 convicting the appellants for offences punishable u/s 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [''NDPS Act'' for short] and sentencing them to undergo RI for 20 years with a fine of Rs. 1 lakh, in default, to further undergo RI for 2 years.
The brief facts of the case are that the appellants were found to be in possession of 1998 gms. of ganja while they were travelling on motor-cycle No. GJ-1-FG-8447 at about 18-30 hours of 28.6.2007 on the Viramgam-Surendranagar Highway, Nr. village Thori. An FIR in this respect was launched by Police Sub-Inspector MN Vankar of Viramgam Rural Police Station indicating that when they had gone for a prohibition nakabandi to village Jakhwada, he noticed two persons travelling on a motor-cycle coming from Ahmedabad side at an excessive speed and, therefore, he suspected them. He, therefore, chased the motor-cyclists and intercepted them near Narmada Colony on the Viramgam-Surendranagar road and, on search, found the contraband in their possession contained in a plastic bag put in a cotton carry bag. Ultimately, offence was registered and charge-sheet filed. Charge was framed at Exh.1, to which the accused persons pleaded not guilty and claimed to be tried.
The trial Court found that the prosecution was successful in establishing charges levelled against the appellants and convicted them, as stated hereinbefore.
Learned advocate Mr. Agrawal for the appellants submitted that apart from other discrepancies that the prosecution case suffers from, it suffers from a major defect in the sealing procedure adopted by the investigating agency at the time of seizure and sampling. He submitted that seizure and sampling would go to the root of the entire case and, therefore, other defects would be in addition to the major defects of sealing and sampling. It was submitted by learned advocate Mr. Agrawal that while sealing the contraband seized and samples drawn therefrom, the investigating agency has not affixed the slips signed by the Panch-witnesses on the outer cover of the packets, but has placed the slips inside the seized muddamal packet and 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 himself. It was, therefore, submitted that the trial Court ought to have given benefit of doubt to the accused-appellants. Mr. Agrawal relied on the following decisions of this Court in:
(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 [Coram: 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.
Learned APP Mr. Mengdey has opposed this appeal.
We have examined the record and proceedings in the context of rival submissions.
On perusal of the record, we find that the Panchnama drawn at the time of seizure and drawing of sample clearly indicates that the slips signed by the Panch-witnesses were placed into the packet 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. The forwarding letter of the FSL reflects the same situation as well. The FIR lodged by the Police Sub-Inspector is also on the same line.
8.1 Learned A.P.P. Mr. Mengdey concedes to the above fact situation.
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.14), FIR (Exh.45) and the forwarding letter of FSL (Exh.50), so also the deposition of the raiding officer (Exh.44) 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 and (iv) Sohanlal Kasiram Brahmin and Anr. v. State of Gujarat 2007 (1) GLH 131.
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.
The appeal thus stands allowed. The judgment and order dated 21.7.2009 rendered by learned Additional Sessions Judge, Ahmedabad (Rural), at Viramgam, in Special NDPS Case No. 1 of 2007, is hereby set aside. The appellants are acquitted of the charges levelled against them and are directed to be released from the prison forthwith, if not required in any other case. Fine paid, if any, be refunded.