Kalubhai Lalabhai Mavi vs The State of Gujarat

J.R. Vora, J.—Both these appeals arises from common judgment as both the appellants were the accused of the same trial, both the appeals are heard together.

Both appeals are directed against the judgment and order, delivered by Special Judge, 3rd Fast Track Court, Dahod, on 14th of March, 2005, in Special Case No. 7 Of 2004 (New) i.e. Special Case No. 3 of 2004 (Old), whereby both the appellants herein came to be convicted by the Trial Court for the offences punishable under Sections 15, 18 to read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and each of the appellant has been sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1 lac, in default, to undergo simple imprisonment of one year.

As per the brief prosecution case, on 18th of March, 2004, Shantilal Kalabhai Garasiya was serving as Senior PSI at Dahod Police Station. On 17th of March, 2004, at about 23.05 hours, he was in night patrolling along with his staff - Head Constable Mohanlal Kalidas, Police Constable Kiritsinh Keshrisinh, Sanjaysinh Mahavirsinh, etc and on 18.03.2004 at about 1.15 hours they reached near the place known as Padav Circle. Election of Parliament was near and, therefore, the Circle being border between the States of Gujarat and Madhya Pradesh, this police party was checking all the vehicles coming from M.P. At that time, one more police party of Andhariya Police Station, in mobile van, A.S.I. Mr. Kadkiyabhai along with his staff were also reached at the spot. They found that, at 1.30 hours, one S.T. Transport Bus, bearing Registration No. GJ-18-V-7944 came there from Indore and was going to Ahmedabad, was checked. Roof of the bus was checked by ASI Kadkiyabhai and Police Constable Badabhai. There were cotton bags on the roof and those bags were opened and it was inquired that those bags belong to whom. Both the accused stated that those bags were theirs. It was ultimately found that there were powder of `poppy straw'' in those bags and, therefore, Kiritsinh, Police Constable was sent to call panchas. The Divisional Police Superintendent Mr. G.K. Solanki was informed by complainant Shantilal Kalabhai Garasiya on mobile phone and Mr. G.K. Solanki reached immediately at the spot. On inquiry, the accused gave their names and addresses, but they had no pass or permit for the powder of poppy straw which they were carrying in bus. Those bags were taken to nearby shop and one shopkeeper Hakimbhai Gulambhai weighed the said bags, and in all, those bags were weighing 221 kgs. 550 grams substance was taken out from the bags which was put into a glass jar and was sealed with the seal of PSI, Dahod Town Police Station in the presence of panchas and signatures of panchas were obtained. A panchnama was drawn as per the procedure and Shantilal Kalabhai Garasiya gave a complaint before Dahod Police Station, which was registered. The accused were arrested by the complainant. Thereafter, investigation was handed over to one PSI Mr. M.V. Gadhvi. The muddamal was sent to Forensic Science Laboratory and charge sheet came to be filed by second Investigating Officer Gulam Mahmad Musheer Shaikh, who is examined as PW-6 at Exhibit 17.

Trial Court framed charges against the accused vide Exhibit-2 and both the accused pleaded not guilty and, therefore, prosecution examined six witnesses as under:

PW-1 Mustafbhai Iqbalbhai Malari, examined at Exh. 8

PW-2 Aslam Rasulbhai Kaiya, examined at Exh. 11

PW-3 Kiritkumar Kesharisinh Solanki, examined at Exh. 12

PW-4 Abbdul Hakim Gulam Mahmad Mansuri, examined at Exh.13

PW-5 Shantilal Kalabhai Garasiya, Police Sub-Inspector, examined at Exh. 14;

PW-6 Gulam Mahmad Musheer Shaikh, examined at Exh. 17.

Prosecution also produced on record documentary evidence to prove its case. Complaint of the complainant is produced at Exhibit -15; panchnama is produced at Exhibit-9, forwarding letter of forwarding muddamal to Forensic Science Laboratory is produced at Exhibit-18; receipt of Forensic Science Laboratory is produced at Exhibit-19 and report of Forensic Science Laboratory is produced at Exhibit-20. Thereafter, incriminating circumstances were brought to the notice of the accused and the defence was of total denial. After hearing the prosecution as well as the defence, the learned Trial Judge came to the above conclusion and, hence, both these Appeals.

Learned Advocate Ms. Farhana Y Mansuri for the appellants in both the appeals as well as learned APP Mr. L.R. Pujari for respondents State were heard in detail.

Mostly on behalf of both the appellants it was emphatically argued that it has not been proved by the prosecution beyond doubt that muddamal was recovered from the possession of the accused. It is submitted that muddammal was, according to prosecution case, on the roof of the bus and not inside the bus. Except the acceptance on the part of the accused, there is no evidence that the substance was belonged to the accused. It is submitted that there are contradictions in the evidence and the independent witnesses i.e. panchas of panchnama PW-1 and PW-2 have not supported the prosecution case. It is submitted that muddamal has not been dealt with properly by police party as muddamal was taken to a shop for weighing the same and thereafter the panchnama was prepared. Tampering with the muddamal and without sealing and replacing the muddamal from the spot, creates doubt in the prosecution case and, therefore, it is submitted that the conviction and sentence imposed upon the appellants are bad in law and appeals be allowed.

As against that the learned APP Mr. L.R. Pujari stated that though both the panchas have not supported the prosecution case but PW-3 Kiritkumar Keshrisinh Solanki, a member of the raiding party and PW-5 Shantilal Kalabhai Garashiya, leading the raiding party, was PSI, have established the case beyond doubt against the accused. Prosecution case finds support from PW-4 Abbdul Hakim Gulam Mahmad Mansuri, who admitted that he had weighed the bags, which contains 221 kgs of poppy straw powder. It is submitted that, according to the Forensic Science Laboratory, the samples of substance recognized to be poppy straw as defined under the NDPS Act. It is submitted that there are no contradictions, in fact, that the substance was recovered from the roof of the bus and accused claimed the substance. It is submitted that the Appeals are required to be dismissed.

We have considered the rival contentions advanced in these Appeals. We have re-appreciated the whole evidence recorded during the trial. We have taken into consideration complete and comprehensive evaluation of all vital features of the case and the broad and reasonable probabilities arising out of the circumstances emerging from the evidence recorded and contentions raised.

Having gone through the evidence on record, it clearly appears that PW-1 and PW-2, both being panch witnesses, have not supported the prosecution case in all respects, except signing the panchnama and receipt of the muddamal. To that extent, the panchas also support the prosecution case. On appreciation of evidence in both the Appeals, it appears that PW-3 Kiritkumar Keshrisinh Solanki, Police Constable and PW-5 Shantilal Kalabhai Garashiya, both have proved the prosecution case beyond doubt. In uncertain terms, PW-3 Kiritkumar Keshrisinh Solanki stated that on the night of 17th of March, 2004 and early morning of 18th of March, 2004 along with PW-5 Shantilal Kalabhai Garashiya, they along with other staff members, were in patrolling and reached near Padav Circle at about 1.10 hours. On account of election of Parliament was near and Padav Circle being the border of two States of Gujarat and M.P., the vehicles coming from MP were checked by the police party. They noticed one State Transport Corporation bus coming from Indore and going to Ahmedabad. PW-3 Kiritkumar Keshrisinh Solanki and Head Constable Mohanlal Kalidas got into the bus to check the passengers while ASI Kadkiyabhai and Police Constable Badabhai got on the roof of the bus to check the luggage. In the presence of ASI Kadkiyabhai and Police Constable Badabhai, opened the bags which contains the powder of poppy straw. On inquiring, both the accused came out of the bus and claimed that the bags were theirs. They identified individual bags. Police Sub-Inspector Mr. Kadkiya informed this incident to Mr. Solanki being superior officer, on mobile phone and this witness was sent to bring panchas. In the meantime, Mr. G.K. Solanki was also reached at the spot. On inquiring, accused gave the names and addresses and panchnama was prepared. The substance in the bags was weighed on electronic scale in a shop near to the bus stand and the substance was about 221 kgs. Sample was drawn. According to PW-3 Kiritkumar Keshrisinh Solanki, after taking 550 grams from the bags, which was collected in glass jar which was sealed properly and the panchas also signed the slips affixed on the samples. This witness has been cross examined in detail. He stated that necessary entry was made in the police station diary about the patrolling. He has been asked about any other vehicle was checked and he stated before the court that no other vehicle was checked. He admitted that there were passengers in the bus, but they did not count how many passengers were there in the bus nor according to this witness the statements of the driver or conductor of the bus were recorded at that juncture. He stated that the bags were lowered down from the roof of the ST bus by Head Constable Badabhai. There was no identification marks on the bags. Seals, wax, etc were not with them and, therefore, seals, wax etc were summoned from the police station. He could not say who had brought seals etc from the police station. While PW-5 Shantilal Kalabhai Garashiya, complaint was given by him, has stated the same facts. He has also been cross-examined by the defence in detail. He stated that before the ST bus, some vehicles were checked. All the buses, which were checked, were full of passengers. No contraband or illegal material was found from the buses. There were other passengers in the bus and that he himself had not gone to the roof for checking. He had informed his superior officer by mobile phone. The sealing material was called for from police station. It was alleged that the accused were falsely involved in this case and this witness denied this fact. It was also alleged that the muddamal was unclaimed in which the appellants were made accused. He denied the suggestion that he did not give any option to the accused of being examined in the presence of Executive Magistrate. This is all the examination-in-cross.

PW-6 Gulam Mahmad Musheer Shaikh is the second Investigating Officer, though he has not done anything, but he filed the charge sheet.

Appreciating the evidence, especially PW-3 and PW-5, it clearly appears that, on night patrolling, by way of chance recovery when ST Bus was checked, poppy straw powder was found . In the examination of PW-3 Kiritkumar Keshrisinh Solanki and PW-5 Shantilal Kalabhai Garasiya there are no contradictions at all. Whether bus was checked from inside and how my passengers were there in the bus, is not a material fact to prove the case of the prosecution nor the case of the prosecution is weakened on account of non-examination of driver or the conductor of the bus. It is the quality of the evidence that material and not the quantity. Both these witnesses are corroborated by documentary evidence like First Information Report and panchnama produced at Exhibit-9 and Exhibit - 15. PW-4 Abdul Hakim Gulam Mahmad Mansuri supports the prosecution case to the extent that he had weighed bags of poppy straw powder at his shop which was brought by police. We do not find the fact fatal to the prosecution case that the muddamal was taken to the nearest shop and thereafter the panchnama was prepared. Panchas also admit their signatures on muddamal slips. Exhibit-9 panchnama is proved by PW-5 Shantilal Kalabhai Garasiya and there is no reason to disbelieve his evidence, even though, both the panchas of the panchnama have turned hostile. Further, what is established is that, on inquiring by the police party, the accused who were travelling in the said bus claimed the bags of theirs and this fact is established beyond doubt and, hence, the contention has no merit that prosecution failed to prove that muddamal was not in possession of the present appellants. Such a huge muddamal to the extent of 221 kgs could not have planted by police only to involve the appellants in a false case. There is no reason why the police involved this particular appellants in this case when no such circumstances could be shown by the defence that police had such motive.

This is a case of chance recovery and finding of muddamal from bags on the roof of the bus, mandatory requirements of Section 42(2) and Section 50 of the NDPS Act are not required to be complied with. It is established from the evidence that PW-5 Shantilal Kalabhai Garasiya called his superior Mr. Solanki, Divisional Superintendent of Police on mobile phone and immediately Mr. Solanki reached at the spot and, therefore, Section 57 of the NDPS Act has also been complied with substantially. Sealing procedure of muddamal is also proved by PW-3 Kiritkumar Keshrisinh Solanki and PW-5 Shantilal Kalabhai Garasiya both. Sample was collected in glass jar and was sealed by seal of PSI, Dahod. This is again confirmed by letter of Forensic Science Laboratory placed on record as enclosures of Exhibit-20, wherein it is mentioned that Forensic Science Laboratory had received samples Mark `A'' which was sealed and seal was of PSI, Dahod Town Police Station and was in conformity with the seal on the sample forwarded in forwarding letter by police on 19th of March, 2004. The muddamal was seized on 18th of March, 2004 in early hours of the day and was sent to the Forensic Science Laboratory on next day i.e. on 19th of March, 2004. Police Constable of Dahod Police Station Pradipsinh Mahipalsinh, Buckle No. 859, received this letter and muddamal on 19th of March, 2004 from the Police Station i.e. from Divisional Superintendent of Police, Dahod and handed over the forwarding letter and muddamal to Forensic Science Laboratory. This is evident from Exhibit - 18 placed on record that, though Pradipsinh Mahipalsinh has not been examined, the case of the prosecution, in all respects, is proved beyond doubt and defence has not made a single dent in the prosecution case.

According to the analytic report of the Forensic Science Laboratory including Botanical examination, the substance was poppy straw as defined in the NDPS Act. Section 2(xviii) of the NDPS Act as under:

''poppy straw'' means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom;

While ''Opium Poppy'' is defined in Section 2(xvii) as under:

''Opium poppy'' means:

(a) the plant of the species Papaver somniferul L.; and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act.

Now having regard to the definition of `Opium Poppy'' and `Poppy straw'' and having regard to the opinion of the Forensic Science Laboratory, which is placed at Exhibit - 20, it clearly appears that the substance which was examined by the Forensic Science Laboratory was ''poppy straw'' and this is the corroborative piece of evidence. The quantity of the substance which is found from the appellants is a commercial quantity and, therefore, they are punished with the minimum sentence provided u/s 17 of the NDPS Act.

In this view of the matter, we do not find any reason to interfere with the conclusions arrived at by the Trial Court. No other contentions is raised.

For the reasons recorded above, Criminal Appeal No. 616 of 2005 and Criminal Appeal No. 632 of 2005 both stand dismissed.