State of Gujarat vs Jangam Bava Jayantilal

Harsha Devani, J.—This appeal is directed against the judgement and order dated 3rd February, 1993 passed by the learned Sessions

Judge, Junagadh in Sessions Case No. 10 of 1992. The facts of the prosecution case are that on 20.10.1991 at 8:00 O''clock at night, the

accused was arrested and brought to the Junagadh City Police Station in connection with an offence under sections 363 and 363A of the Indian

Penal Code being I - C.R. No. 552/1991. At that time, he was searched and certain articles were recovered from him, including two plastic bags

which were filled with ganja. Upon weighing the ganja, it was found to weigh 95 grams, hence, a panchnama was made in this regard and the

Police Inspector - Shri B.G. Chavda lodged a first information report against the accused. The said first information report came to be registered

as Junagadh City Police Station III - C. R. No. 817 of 1991 for the offences punishable under the provisions of the Narcotic Drugs &

Psychotropic Substances Act, 1985 (hereinafter referred to as ""the NDPS Act"").

Mr. K.L. Pandya, learned Additional Public Prosecutor referred to the depositions of the witnesses as well as the documentary evidence on

record to submit that the prosecution had duly established its case against the respondent and as such, the learned Sessions Judge was not justified

in holding that the prosecution had not proved the charges levelled against the accused beyond reasonable doubt. It was submitted that though the

panch witness had not supported the prosecution case, the prosecution, through the testimony of the first informant and the Investigating Officer,

had duly proved the charges levelled against the accused. Under the circumstances, the impugned judgement and order deserves to be quashed

and set aside and the respondent is required to be convicted for the offences in question.

A perusal of the record shows that the respondent No. 1 is unserved. However, the learned Additional Public Prosecutor, despite having been

given an opportunity of furnishing the fresh address of the respondent, has failed to furnish the same. However, having regard to the facts of the

case and the view that the court is inclined to take in the matter, it is not necessary to wait till the respondent is served.

A perusal of the record and proceedings of the case reveals that in support of its case, the prosecution has examined only two witnesses,

namely, P.S.I. Shri Chavda the first informant and the Investigating Officer and Shri Bhupatsinh Bhikhusinh Darbar, namely, the panch witness.

PW-1-Bhupatsinh Bhikhusinh Darbar has not supported the prosecution case and has been declared hostile. The said witness has been cross-

examined at length by the learned Public Prosecutor and his attention has been drawn to every detail in the panchnama, however, the said witness

has stated that the facts recorded in the panchnama are not true and has also categorically stated that the bags containing the muddamal ganja have

not been recovered from the accused in the presence of the panchas.

Insofar as the first informant and Investigating Officer is concerned, he has deposed that apart from the other articles which were recovered

from the accused, two bags containing ganja weighing 95 grams had also been found. A slip bearing the signatures of both the panchas had been

affixed on the said bags and the same had been duly sealed and seized.

The record of the case reveals that while producing the accused before the learned Chief Judicial Magistrate, at Junagadh, the muddamal ganja

had not been produced. At the time of search of the person of the accused, he had not been asked as to whether he wants to be searched in the

presence of a Gazetted Officer, thus there is a breach of the provisions of section 50 of the NDPS Act. The muddamal had been sent for analysis

on 25.10.1991, after a period of five days from the date on which it was seized and the forwarding letter has not been produced on record. Thus,

the prosecution has not established that the muddamal was in safe custody from the time of seizure thereof, till the time the same was sent for

analysis. The record also reveals that after the search came to be conducted, the concerned officer did not send a report in respect thereof to his

higher officer.

Thus, the only evidence which has come on record is in the nature of the deposition of the first informant, who is also the Investigating Officer

who had investigated the case initially. However, subsequently, it appears that the said officer had been transferred and another police officer,

namely, Sub Inspector Shri V.R. Agathe had submitted the charge-sheet before the concerned court. He, however, has not been examined.

From the facts noted hereinabove, it is apparent that there is a breach of various mandatory provisions of the NDPS Act, inasmuch as, the

accused has not been asked whether he wanted to be searched by a Gazetted Officer; the muddamal has not been produced before the learned

Mamlatdar; the concerned officer has not made any report regarding the search conducted by him to his superior officer. Under the circumstances,

it would not be safe to base a conviction solely on the deposition of the first informant, which also does not inspire much confidence, inasmuch as,

the same is very sketchy and does not bring out the facts in detail. Under the circumstances, no infirmity can be found in the impugned judgement

and order passed by the learned Sessions Judge. The view adopted by the learned Sessions Judge is not only a plausible view, but on the facts and

circumstances of the cases, appears to be the only view which could have been adopted. In the light of the aforesaid discussion, the appeal fails

and is, accordingly, dismissed.