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Judgment
A.L. Dave, J.—P.S.I. Shamlaji Police Station Mr. Shankerbhai Purshotamdas Patel, while patrolling, received a secret information in the
early morning hours of 11.6.2002 that a person travelling by Luxury Bus No. RJ-23-P-1802, is carrying contraband. He, therefore, went to the
Police Station, made an entry in the police station diary, informed his superior, also informed the Mamlatdar, Bhiloda and went to Shamlaji Check-
Post at about 7.30 A.M on 11.6.2002. He had also summoned two panch witnesses, namely, Rameshbhai Badabhai Patel and Manishkumar
Harbanslal, for the purpose. When Bus No. RJ-23-P-1802 arrived at the Check-Post, the said officer, along with other members of the raiding
party and the Mamlatdar, Bhiloda Mr. Punjabhai Shankerbhai, boarded the bus and the Mamlatdar introduced himself as such and informed the
passenger travelling on Seat No. 31 about the secret information and for a search. The passenger, initially, showed his reluctance, but, ultimately,
came to be searched. A bag was found with the said passenger, where-from, besides his clothes, contraband charas weighing about 7.500 Kgs.,
packed in three different polythene bags, was found. The passenger was the present appellant Mohammed Yasin Ahmedbhai Sheikh, as per the
prosecution case. He was brought out of the bus. Witness Prakashchandra Naranbhai Soni was summoned for weighment of the contraband
seized. The procedure was undertaken, samples were drawn and the samples and the contraband seized, were sealed. A panchnama to this effect
was prepared in the presence of the panch witnesses and thereafter F.I.R was lodged by P.S.I. Mr. S.P. Patel. On the basis of that, offence was
registered, the samples of the contraband seized were sent to F.S.L and were found to be that of charas. The charge sheet, therefore, came to be
filed against the appellant for the offences punishable under Sections 8(C), 20 and 22 of the Narcotic Drugs and Psychotropic Substances Act,
1985 [""N.D.P.S. Act"" for short] and N.D.P.S. Case No. 2/2002 came to be registered in the Sessions Court, Sabarkantha at Himatnagar.
1.1 Charge was framed against the appellant-accused at Exh.5 for the offences punishable under Sections 8(C), 20 and 22 of the N.D.P.S. Act,
to which he pleaded not guilty and, therefore, came to be tried. On considering the evidence led by the prosecution, the trial Court came to the
conclusion that the involvement of the appellant in the offence was duly proved by the prosecution and, therefore, the trial Court recorded
conviction of the appellant for the offences punishable u/s 8(C) r.w. Section 20 and Section 8(C) r.w. Section 22 of the N.D.P.S. Act and
sentenced the appellant to undergo R.I for ten years with fine of Rs. 1,50,000/-, with a default clause that he should undergo further R.I for three
years in the event of default in payment of fine. The trial Court also ordered that the sentences would run consecutively. The judgment was
rendered on 15.3.2003. Aggrieved by the said judgment and order, the present appeal is preferred by the convict.
Learned advocate Mr. Yogesh R. Agrawal, appearing for the appellant, submitted that the prosecution case suffers from various defects. He
submitted that, as per the evidence of the first informant, he had received information only to the effect that a passenger, going by Bus No. RJ-23-
P-1802, would be travelling with contraband. Mr. Agrawal submitted that in spite of this, when the search of the bus was conducted, there is no
evidence to show that any other passenger was even searched or inquired about the contraband. How and why the raiding party stopped only at
Seat No. 31 occupied by the convict appellant, is not explained.
3.1 Mr. Agrawal submitted further that the panch witnesses, in whose presence the contraband was seized, have not supported the prosecution
case and have turned hostile.
3.2 He further submitted that the evidence of the Investigating Officer and other witnesses run contrary to each other. According to the Mamlatdar,
the bag containing contraband, was found lying beneath the seat of the passenger at seat No. 31; whereas the other witness stated that the said bag
was held by the passenger - appellant. He submitted further that the panchnama of seizure is not clear on this aspect.
3.3 Mr. Agrawal submitted that the evidence regarding sampling and weighment of the contraband is also inconsistent and doubtful. The person,
who weighed the muddamal, stated that he had not gone to the Check-Post, but, the weighment was done at the Police Station; whereas the other
witness, viz., the first informant, in clear terms states that the weighment was done near the bus at the Check-Post. According to Mr. Agrawal, this
would not only adversely affect the prosecution case about the seizure, but, would also affect the sampling aspect.
3.4 Mr. Agrawal submitted that though it has come in evidence that the bag, from which the contraband was found, also contained clothes of the
accused, there is no investigation in that direction made by the investigating agency to ascertain whether, the clothes belonged to the appellant. Last
but not the least, Mr. Agrawal submitted that there is no independent and cogent evidence to show that the appellant was travelling by the bus, the
passengers'' list or the tickets are not seized, no passenger travelling by the bus is examined and the conductor of the bus, who has been examined,
has turned hostile and has not supported the prosecution case. According to Mr. Agrawal, therefore, the evidence led by the prosecution is not
sufficient to convict the appellant and the trial Court has overlooked these aspects and recorded the conviction.
3.5 Mr. Agrawal relied on the decision in the case of Ritesh Chakarvarti Vs. State of Madhya Pradesh, In support of his submissions, besides the
decision in the case of Jagdish Vs. State of Madhya Pradesh, , he also relied on the decision in the case of Mukhtiar Ahmed Ansari Vs. State
(N.C.T. of Delhi), . Ultimately, he submitted that the appeal may be allowed.
Learned A.P.P. Mr. Bhatt has opposed this appeal. According to him, non-examination of independent witnesses would not affect the
prosecution case. Likewise, non-support by the panch witnesses would be of no virtue to the defence, as official witnesses have supported the
prosecution case. He submitted that the involvement of the appellant is duly established by the F.S.L. Report, evidence of the first informant,
raiding officer and other witnesses, the appeal may, therefore, be dismissed.
We have examined the record and proceedings in the light of the rival side submissions made before us. We find that the prosecution has
examined panch Rameshbhai Badabhai as PW.1 at Exh.9 and Manishkumar Harbanslal as PW.3 at Exh.14. These two are the witnesses, in
whose presence panchnama of seizure was drawn as per the prosecution case. However, both of them do not support the prosecution case.
According to them, their signatures were obtained on blank papers and they know nothing about the seizure. They have been declared hostile.
Raju Mohanlal is examined as PW.2 at Exh.10. He was working as the cleaner in the bus and he also does not support the prosecution story
about the search, seizure and arrest of the appellant and he has also been treated as a witness hostile to the prosecution. Further, Maganbhai
Revabhai Parmar has been examined as PW.6 at Exh.23. He is P.S.O of Shamlaji Check-Post. He registered the complaint, received the
muddamal and handed it over to Head Constable Ramabhai Khemacbhai, PW.7 Exh.25. Mamlatdar Punjabhai Shankerbhai is examined as PW.8
at Exh.27. Nanjibhai Ramabhai Parmar, who was a member of the raiding party, is examined as PW.9 at Exh.28. Janmohmad Fakirbhai Mansuri,
who is an officer from F.S.L, is examined at PW.10 at Exh.29. Bhalabhai Odharbhai is examined as PW.11 at Exh.35. He is the person who
carried the muddamal from the police station to the F.S.L on the very next day of the incident. According to him, he started at about 7.30 A.M
and delivered the muddamal at F.S.L., Ahmedabad at 11.30 A.M. The remaining two witnesses viz., Ramsinh Gogalsinh Chavda and Kashiram
Khemchandbhai Shrimali, are two Investigating Officers, who have been examined at PWs. 12 & 13 at Exhs. 36 & 38 respectively.
From the evidence of panchas Rameshbhai Badabhai and Manishkumar Harbanslal, it is clear that they do not support the prosecution case.
They do not say anything about any search or seizure, and they say that their signatures were obtained on blank papers and chit and they do not
know for what purpose they were used by the police.
6.1 Witness Raju Mohanbhai, who is cleaner of the bus, examined at Exh.10, also does not support the prosecution case and pleaded total
ignorance. He has been treated as hostile witness and he does not say anything about the incident.
6.2 PW.5 Shankerbhai Purshotamdas Patel and PW.8 Punjabhai Shankerbhai Vaghela are the first informant and the Mamlatdar respectively,
who were present at the time of the search and the seizure. From the depositions of these witnesses, what emerges is that the panch witnesses do
not support the prosecution case. The cleaner also does not support the prosecution case and, therefore, one has to rely on the evidence of first
informant Shankerbhai Purshotamdas Patel, Mamlatdar Punjabhai Shankerbhai and Nanjibhai Ramabhai Parmar (Exh.28). In this regard, if we
see, these witnesses say that when the bus came, they entered the bus, stopped at seat No. 31 and the Mamlatdar asked the occupant of seat No.
31 for a search after introducing himself and informed the occupant about the information, to which the occupant showed reluctance initially, but,
he agreed for search. It is nobody''s case that any other passenger was searched, either prior to the search of the passenger of seat No. 31, or
subsequent to the seizure from the occupant.
Now, coming to the question as to whether the seizure was from the conscious possession of the occupant of seat No. 31, namely, the
appellant. In this regard, evidence of Mamlatdar Punjabhai and Head Constable Nanjibhai is to the effect that the contraband was seized from
beneath the seat of the appellant; whereas, according to first informant Shankerbhai Purshotamdas, it was found from the appellant. There is
contradiction about the place from where the bag containing the contraband was seized. There is no evidence about the exact location of seat No.
31 in the bus, and whether the occupant of seat No. 31 would be the only person to have an excess beneath the seat. The panchnama of seizure is
not clear about the location of the bag containing contraband at the time of seizure, whether it was in the hands of the appellant, as asserted by first
informant Shankerbhai Purshotamdas, or whether it was lying beneath his seat, as stated by Mamlatdar Punjabhai and Head Constable Nanjibhai
Ramabhai (PW.9). The seizure, therefore, starts reeling under the shadow of doubt at this point.
There are other factors, which would further strengthen the doubt about the seizure. That factor is, where was the weighment, sampling and
sealing done. In this regard, if the evidence is scrutinized, PW.4 Prakashchandra Naranbhai Soni (PW.15), through whom the contraband was
weighed, says that the weighment was done, including that of the samples, at the police station and not at the Check-Post. This witness has not
been treated as a hostile witness. In this regard, we may now refer to the decision in the case of Mukhtiar Ahmed Ansari (supra), where, in
Paragraph 34, it has been observed as under:
The learned Counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved
Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW.1. He, however, did not support the
prosecution. The prosecution never declared PW.1 `hostile''. His evidence did not support the prosecution. Instead, it supported the defence. The
accused hence can rely on that evidence.
The Apex Court then, while referring to the decision in the case of Raja Ram v. State of Rajasthan JT (2000)7 SC 549, has observed in
Paragraph 36 thus:
In the present case, evidence of PW-1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in
which police had gone to Bahai Temple and apprehended the accused. When Goel did not support the case, accused can rely on that evidence.
8.1 In the case before us, the Goldsmith, who had weighed the contraband, admits to have done so. But, according to him, the weighment was
done at the Police Station and not at the Check-Post. The prosecution has not treated him as a witness hostile to it. This part certainly makes it
doubtful, as to whether the contraband was weighed at the Police Station or at the Check-Post. This doubt will also disable the evidence on
sampling and sealing. It becomes a matter of doubt, whether the sampling and sealing was done at the Check-Post or at the Police Station, and if it
is a matter of doubt, then benefit has to go to the accused. This doubt is of such a nature that it would hit at the root of the prosecution case, viz.,
search, seizure, sampling and sealing. All these aspects would reeling under a cloud of doubt.
8.2 It is also to be noted that the information received by PW.5, the first informant, was only to the effect that a person, travelling in Bus No. RJ-
23-P-1802, was to carry contraband with him. The question that arises is that, in absence of any evidence in support of any other person and a
positive assertion that upon entering the bus, the passenger of seat No. 31 was informed and introduced to the team, how could that no other
passenger was searched prior to the passenger of seat No. 31 and how the team went straightway to seat No. 31. No explanation is coming from
the prosecution and it becomes a matter of doubt, whether the prosecution story, as it stands, is really true.
8.3 We may add that about the search and seizure, no passenger from the bus has been examined, nor any other independent person at the
Check-Post has been examined and the cleaner of the bus has not supported the prosecution story.
8.4 It is also a matter of doubt, whether the appellant was really travelling by the said bus, because, according to him, he was nabbed and involved
while he had gone to Shamlaji to visit his friend''s shop. The investigating agency has not seized, either the ticket of the appellant or the passengers''
list from the travel operator, which could have indicated that the appellant was, in fact, travelling by the said bus. This would, therefore, affect the
search and seizure as well.
At this stage, we may refer to the decision in the case of Ritesh Chakarvarti (supra), particularly, paragraphs 31, 32, 33, 36 & 37 as under:
It was submitted that although PWs 1 and 2 were declared hostile, their signatures on the seizure documents had not been disbelieved. They
categorically stated that their signatures were obtained on blank papers and they were not witnesses to seizure. On the face of such statements
made by the said witnesses, it was all the more necessary to examine all the departmental witnesses.
It may be that the articles seized had been sent for chemical analysis and were found to be analysed but that loses much of its significance as
the prosecution must prove its case of recovery of the contraband beyond all reasonable doubt.
It was furthermore urged that Applicant has not been able to prove the defence raised by him. It was not necessary for him to do so. It was
contended that the burden to prove the defence set up by him was on Appellant and he failed to discharge the same. In a case like the present one,
the said submission cannot be appreciated. The prosecution was required to prove its case beyond all reasonable doubt. If the prosecution has
failed to prove its case, it cannot fill up the lacuna by contending that Appellant has not proved its defence.
He even was not required to carry on any further investigation as all the officers available at the Bureau had taken part in the raid and no other
independent witness was to be examined. Furthermore, how the accused was identified is not known. How he could be singled out has not been
explained.
In Jagdish v. State of M.P. (2003) 9 SCC 159, a Three-Judge Bench of this Court set aside a judgment of conviction where independent
witnesses denied that search and seizure for recovery of opium took place in their presence. An adverse inference was further drawn as to why
PW-1 Narcotic Sub-Inspector therein brought down only one passenger from the bus if he did not have any prior information or entertain any
suspicion regarding involvement of Appellant therein being in possession of smuggling of opium.
We may also add that the investigation appears to have been done by two officers, who are examined as PWs. 12 & PW.13, namely,
Ramsinh Gopalsinh Chavda and Kashiram Khemchandbhai Shrimali at Exhs. 36 & 38 respectively. On reading their depositions, we find that no
attempt is made to investigate on the question about the clothes found from the bag containing the contraband. It comes at some stage during the
course of investigation that the clothes were of the accused, but, then there is no further investigation in that direction. The prosecution has not
examined any other independent witness, nor is there any material to show, whether some such statements were recorded by the investigating
agency. All these factors expose the prosecution case to doubt. The cumulative effect of the defects discussed above mixes-up the doubt, whether,
in fact, the appellant was travelling by the bus, whether the contraband was in his conscious possession, whether it was seized from him, whether
the weighment, sampling and sealing was done at the Check-Post, as per the prosecution case and, therefore, the trial Court committed an error
while convicting the appellant for the offences with which he was charged.
10.1 We may also add that the charge against the appellant was that of having been found in possession of charas, which is a narcotic drug;
whereas the trial Court has convicted him u/s 22 of the NDPS Act, which is applicable to psychotropic substance and not to narcotic drug, and
that is how also, an error is committed by the trial Court. The judgment, therefore, calls for an interference in exercise of the appellate jurisdiction
by this Court.
For the foregoing reasons, the appeal is allowed. The judgment and order dated 15.3.2003 rendered by the learned Additional Sessions
Judge, Fast Track Court, Himatnagar, recording conviction of the appellant-accused for the offences punishable under Sections 8(C) read with
Section 20 and Section 8(C) read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, in N.D.P.S. No. 2/2002, 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.