State Of Gujarat vs Mahendrakumar @ Mendo Krushnaprasad Dave

Rajendra M. Sareen, J

This Appeal is filed by the appellant – State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 03.03.2005 passed by the learned Additional Sessions Judge and Fast Track Judge, Dhangadhra in Special Case No.3 of 2004 acquitting the respondent - original accused from the offences punishable under sections 8(C) , 21 and 22 of the Narcotic Drugs and Psychotropic Substance Act (“NDPS Act” for short).

The case of the prosecution case is that the complainant, Police Sub-inspector Mr.N.A.Pathan, of Halvad Police Station at about 14=00 hrs. of 07.10.2003 received information through informant and upon receiving the information he prepared his staff members alongwith Executive Magistrate and panch witnesses and went to Dharmshala situated near Halvad Railway Station, where the accused was present and was selling brown sugar. The complainant after following necessary procedures, searched the person of the accused and found 24 gm 300 ml gm of Brown Sugar worth of Rs.24,000/-. The complainant arrested the accused for the offence under sections 8 (c), 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and registered the said offence against the accused vide II.C.R.No.96 of 2003 with Halvad Police Station. The Investigating Officer, then investigated the case, recorded the statements of relevant witnesses and obtained the report of the F.S.L., Gandhinagar. As there were ample evidence against the accused, the Investigating Officer prepared and submitted the charge-sheet in the Court of the learned Judicial Magistrate First Class, Halvad, who in turn as per Section 209 of the Code of Criminal Procedure committed the said case to the Sessions Court, which was registered as Special Case No.3 of 2004. The accused was given all the police papers and after verifying the same, the learned Judge vide Exh.13 framed charges against the accused, to which the accused replied his plea vide Exh. 14 denying his involvement in the offence and prayed to be tried. To prove its case, the prosecution has examined various witnesses and has produced several documents. The prosecution thereafter has filed its closing pursis vide Exh.49. Thereafter, the learned Judge as per Section 313 of the Code of Criminal Procedure recorded the further statement the accused-respondent, wherein also the accused denied in toto regarding his involvement in the commission of offence. Thereafter, the Learned Judge heard both the parties at length. However, after completion of trial, the learned Judge acquitted the accused of the offences with which he was charged.

Being aggrieved by and dissatisfied with the aforesaid judgement and order of acquittal, present appeal has been filed by the appellant – State.

Learned APP Mr.R.C. Kodekar for the appellant – original complainant has vehemently argued that all the mandatory procedure has been followed by the investigating officer under the provisions of the NDPS Act. The trial court has not believed the evidence of the prosecution. The learned Judge has committed a grave error in not believing the deposition of the prosecution witnesses and documentary evidence on record. He has further submitted that the learned Judge has erred in acquitting the respondent – accused from the charges levelled against him. He has further submitted that the prosecution has proved that the respondents have committed offence under sections 8(c), 21 and 22 of the NDPS Act. He has further submitted that the learned Judge has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the prosecution. He has further submitted that the learned Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. He has further submitted that the offence punishable under section 8(c), 21 and 22 of the NDPS Act, is made out, however, the same is not believed by the learned Judge. He has further submitted that though the prosecution witnesses have supported the case of the prosecution, the trial court erroneously not believed their evidence and acquitted the accused.

Making above submissions, he has requested to allow the present appeal.

Mr.Dhaval D. Vyas, learned advocate for the respondent accused has vehemently opposed the present appeal. He has submitted that the trial court on appreciation of evidence in its true perspective has rightly acquitted the respondent accused. He has submitted that the prosecution has failed to prove the case beyond reasonable doubt. He further submitted that the prosecution has failed to comply with the mandatory procedure and hence considering the overall evidence on record, the trial court has rightly acquitted the respondent accused and no error has been committed by the trial court and hence no interference of this court is called for.

4.1. Mr.Vyas, learned advocate for the respondent accused has further submitted that as per the settled legal position the prosecution is required to prove and establish its case beyond reasonable doubt and in absence thereof, the accused is entitled to benefit of such doubt. The has further submitted that in case two views are possible on facts, the accused is entitled to have benefit of the view which is favorable to him.

4.2. Mr.Vyas, learned advocate for the respondent accused has relied upon the decision in the case of State of Rajasthan Vs. Paramanand reported in 2014 (3) SCC 345 in support of his submission that non-communication of rights to the accused, prescribed procedure to be followed meticulously. Noon-compliance leads to breach of section 50 of the NDPS Act.

4.3. Mr.Vyas, learned advocate for the respondent accused has relied upon the decision in the case of Arif Khan V. State of Uttarakhand, reported in 2018(18) SCC 38 in support of his submission with respect to scope and object of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and noncompliance thereto, would prove fatal to the prosecution’s case. Paragraph Nos.17 to 20 read as under:-

“17. In other words, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section of the NDPS Act was followed by the Police Officials in letter and spirit while making the search and recovery of the contraband “Charas” from the appellant (accused).

What is the true scope and object of Section 50 of NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab Vs. Baldev, (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392).”

4.4. Mr.Vyas, learned advocate for the respondent accused has relied upon the decision in the case of Jaikam Khan V State of Uttar Pradesh, reported in 2021 SCC Online SC 1256 in support of his submission that burden on prosecution to prove all allegations beyond reasonable doubt and in absence thereof, the benefit must go to the accused. Relevant para reads thus:

“86. We may gainfully refer to the following observations of this Court in the case of Anand Ramandra Chougle v. Sidarai Laxman Chougala and others:

“10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.

The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prose cution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427] , this Court observed : (SCC pp. 433, pp 34 para 28)

“28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.”

4.5. Mr.Vyas, learned advocate for the respondent accused has relied upon the decision in the case of Nallabothu Ramolu V. State of Andhra Pradesh, reported in 2014 (12) SCC 261 in support of his submission that if two views are reasonably possible, the Appellate Court shall not disturb the order of acquittal because it feels that another view is possible. Reasonable view which reinforces presumption of innocence of accused must be preferred.

Making above submissions, he has requested to dismiss the present appeal.

Heard the learned advocates for the respective parties and perused the impugned judgement and order of acquittal. Re-appreciated the entire evidence on record.

Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

On re-appreciation of evidence, it is clear that the complainant Shri Pathan had received information according to which brown sugar was being sold in the area of the railway station. Further Shri Pathan, who is a competent officer ought to have taken note of such information as per Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985. However, as per his deposition, it does not become evident that he had in fact noted such information and thus there is reason to believe that the complainant has acted in violation of the statutory provision and thus, there is breach of section 42 of the NDPS Act.

7.1 The deposition of witness no.10, Shri Yunisbhai Ibrahimbhai with regard to the fact that what verification he had undertaken was to be ascertained, since in his deposition he has stated that he went for verification as instructed by Shri Pathan (P.S.1). In his deposition further, Yunisbhai states that the accused was sitting in the area of the railway station and in suspicious condition.

Further, the fact that he gone for the verification and that the accused who was sitting at the railway station and was in suspicious condition is contrary to his cross examination inasmuch it is not clear as to what details were to be verified for which Shri Pathan had sent him and further how the accused seemed suspicious was also not clearly disclosed.

7.2. As per the deposition of the complainant, the personnel from the Executive Magistrate's office had interrogated the accused first, however, the said aspect does not find any mention in the complaint that the personnel from the Executive Magistrate's office in the presence of Panchas had questioned the accused, while before the Court in the deposition it was stated otherwise, which would indicate a discrepancy in the complaint and the complainant's deposition. The deposition of the complainant does not support the complaint.

7.3. Further looking to the deposition of witness no.12, Shri Khant, it is clear that that the police official had undertaken the investigation and had questioned the accused and he also states that he had no knowledge of any options which were provided to the accused as per Section 50 Narcotics Drugs and Psychotropic Substances Act, 1985 as to whether the accused desired another Magistrate/Gazetted Officer’s presence so that the investigation could be continued. The said witness further, in his cross examination states that in such an investigation, he had no role to play and that the police had given his introduction as the Executive Magistrate. Thus, there was a material contradiction in the complaint and the complainant's deposition before the Court and the present witness's deposition. The said witness was merely present as an individual of the group who had carried out the raid and his deposition does not support the complainant. No option was given to the accused with respect to search. Thus, there is breach of mandatory section 50 of the NDPS Act.

7.4. Further, where muddamal was kept is not mentioned in the complaint. Further, the muddamal was sent to FSL Junagadh, which was returned to be sent to FSL Gandhinagar and on the next day the muddamal was sent to FSL Gandhinagar and from Gandhinagar the muddamal was returned and on the next day again the muddamal was sent to FSL Gandhinagar. These facts have not been stated by Shri Pathan in his statement. There is material contradictions in his deposition and statement and cross examination.

7.5. As stated hereinabove, there is no compliance of mandatory section 50 of the NDPS Act.

7.6. Considering the overall evidence on record, this Court is of the opinion that the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled for acquittal.

7.7. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

“6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

“8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

“9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

“36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.”

In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.