Surjusing Ganpatsing vs State of Gujarat

J.C. Upadhyaya, J.—The challenge in this appeal is to the judgment and order rendered by the Ld. Joint District Judge & Special Judge, 4th Fast Track Court, Morbi, on 23/7/2004 in Sessions Case No. 19 of 2003 [NDPS], whereby the present appellant who was original accused in said case came to be convicted for the offence punishable u/s 20(B)(2)[C] of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act] and was sentenced to undergo rigorous imprisonment [RI] for 10 years and fine of Rs. 1 lac, in default RI for one year.

The prosecution case, in nutshell, is that on 11/3/2003 PSI Mr. Pravinsinh J. Jadeja was available in Wankaner Taluka Police Station round about 9.00 am and at 12.00 in the noon he received secret information to the effect that the present appellant [Surajsing Ganpatsing Adivasi, resident of Bihar] is in possession of contraband substance Ganja and would be found near Wankaner boundary on Rajkot - Ahmedabad National Highway. The said information was reduced into writing by him and the same was forwarded to Dy. S.P. Morbi Division. Thereafter two panchas were called and panchas were apprised of the fact regarding the secret information. Preliminary panchnama was drawn in the police station and thereafter, PSI Pravinsinh Jadeja and other police personnel along with two panchas proceeded to the place of information. When they reached near Wankaner boundary, they found the appellant having a jute bag kept besides him. The appellant was apprised about the information received by PSI Jadeja and all the members of raiding party including the panchas were introduced to him. He was apprised of the fact that he would be put to search and if he desires, his search to be conducted in presence of Gazetted Officer or Magistrate. He has a right to say so, to which he replied that he has no objection if the search is to be conducted by PSI Jadeja. It is the case of the prosecution that when the jute bag was searched, 11 polythene bags were found and on opening of these 11 bags, Ganja was found. The weighment of Ganja was made by PW 3 Rameshbhai Ramjibhai and total weight of contraband was 20 Kgs and 500 Grams. Samples from each bag containing Ganja were collected and same were packed and sealed. Seizure pancnama was drawn at the place of the incident. Along with the appellant, all the members of the raiding party including PSI Jadeja came to Wankaner Taluka Police Station. PSI Jadeja lodged the FIR regarding the offence against the appellant, which came to be registered. PSI Ravjibhai Mangabhai PW 11 conducted the investigation. During the course of investigation, statements of material witnesses were recorded. Muddamal samples were forwarded to Forensic Science Laboratory [FSL] for necessary examination. After receipt of FSL report, charge-sheet was filed against the appellant in the Court of Ld. Judicial Magistrate First Class, Wankaner. Since the offence was exclusively triable by the Special Court [Sessions Court], Ld. Magistrate committed the case to the Court of Sessions, Morbi, which was numbered as Sessions Case [NDPS] No. 19 of 2003.

Ld. Trial Judge framed charge against the accused at exh. 1, to which he did not plead guilty and claimed to be tried. Thereupon, prosecution adduced its oral and documentary evidence. The prosecution examined in-all 11 witnesses and produced required documentary evidence. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statement of the appellant u/s 313 of the Criminal Procedure Code. The appellant in his further statement denied generally all the incriminating circumstances put to him by the trial Court and stated that he was innocent and he was falsely implicated in this case. After appreciating the evidence on record and considering the submissions made on behalf of both the sides, the Ld. Trial Judge came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt against the appellant and ultimately recorded his conviction for the offence punishable u/s 20(B)[2][C] of the NDPS Act and awarded the sentence as hereinbefore referred to in this judgment.

We have heard Ld. Advocate Mr. U S Brahmbhatt for the appellant and Ld. APP Mr. Vyas for the respondent - State.

Ld. Advocate Mr. Brahmbhatt for the appellant took us through the oral evidence of the witnesses recorded by the trial Court and submitted that the prosecution miserably failed to prove that the appellant was in conscious possession of the contraband article Ganja. It is submitted that the evidence of the witnesses who were members of the raiding party is inconsistent as some of the witnesses deposed that at the time when the members of the raiding party reached near the appellant, he had put one leg on the jute bag containing the Ganja, whereas the other witnesses did not depose on the same line.

5.1. Ld. Advocate Mr. Brahmbhatt further submitted that the prosecution failed to prove the knowledge of the appellant regarding the contraband article. It is the defence of the appellant right from the very beginning that in-all there were 4 accused persons, who were present near the place of the incident and seeing the police jeep approaching towards them, the 3 accused made their escape good; whereas the appellant, who was innocent, came to be apprehended. It is submitted that the very conduct of the appellant in not fleeing from the place of the incident suggests that he had no knowledge about the contraband article Ganja kept in the jute bag. Over and above this, in the personal search of the appellant, nothing was found from his possession.

5.2. Ld. Advocate Mr. Brahmbhatt submitted that the mandatory requirements contained u/s 43 of the NDPS Act have not been fully complied with.

5.3. Ld. Advocate Mr. Brahmbhatt further submitted that it has come in evidence that at the time when the contraband article Ganja was seized, the bulk was wet and contained moisture. That, therefore, if the weight of the moisture is excluded, the quantity of Ganja would be more than small but lesser than commercial quantity and the maximum sentence provided is imprisonment for 10 years and fine of Rs. 1 lac. It is, therefore, submitted that in the instant case the sentence may be reduced.

5.4. Ld. Advocate Mr. Brahmbhatt relied upon a decision rendered in the case of State of Punjab v. Hari Singh reported in 2009 SAR [Criminal] 275 and stated that considering the ratio laid down by Hon''ble Apex Court in this case, the conscious possession of the appellant of the Ganja cannot be said to have been duly established and he deserves benefit of doubt.

Per contra, Ld. APP Mr. Vyas for the State vehemently opposed this appeal and submitted that the prosecution successfully proved the conscious possession of the appellant of the Ganja and considering Section 54 of the NDPS Act, when the prosecution proves the conscious possession, the onus shifts on the shoulder of the accused to rebuke the presumption contained u/s 54 of the NDPS Act. In the instant case, the appellant in his further statement recorded u/s 313 of the Cr.P.C the only defence of denial is raised, but nowhere he stated about the presence of other 3 accused persons along with him and that the 3 accused persons made their escape good and only he was caught by the police. He failed to satisfactorily account for his possession of Ganja.

6.1. Ld. APP Mr. Vyas further submitted that Section 43 of the NDPS Act is only enabling provision empowering the police officer to conduct search and seizure in public place, but no mandatory provision is contained in Section 43.

6.2. Ld. APP Mr. Vyas placed reliance on the decision rendered in the case of Shiv Kumar Mishra Vs. State of Goa through Home Secretary, and submitted that as per the ratio laid down by the Hon''ble Apex Court in this case, the weight of the contraband would be the weight taken at the time of seizure and there is nothing in the NDPS Act suggesting that at the time of seizure, weight of the Ganja and moisture content are to be ascertained separately so that moisture content can be excluded for determining actual weight of the Ganja. Ld. APP Mr. Vyas drew our attention to the FSL report exh. 42 and submitted that even after 10 to 15 days of the seizure of the contraband article Ganja when the samples were analyzed, no weight loss was found by the FSL, muchless any moisture.

6.3. Ultimately it is submitted that the appeal may be dismissed.

We have examined the record and proceedings in the context with the submissions made by rival side.

Considering the evidence on record, it clearly transpires that the prosecution examined the police witnesses, who were members of the raiding party including the pancha and PW 3 Ramesh Ramjibhai who weighed the contraband substance. We have carefully gone through the evidence of PSI Pravinsinh Jadeja PW 1 examined at exh. 4, PW 2 panch Harishchandrasinh Navubha examined at exh. 18, PW 3 Ramesh Ramjibhai examined at exh. 20, who has weighed contraband substance Ganja, PW 4 Rajendrasinh Govubha Jadeja examined at exh. 22, who is driver of police jeep wherein the members of the raiding party reached at the place of the information and who called PW 3 Ramesh Ramjibhai along with weighing materials, PW 5 Jaydevsinh Ghoghubha examined at exh. 23, who is Police Constable and who was one of the members of the raiding party, PW 9 Dineshprasad Ayodhyaprasad examined at exh. 32, who was serving as Head Constable in Wankaner Taluka Police Station and who was also one of the members of raiding party and PW 10 ASI Ashokkumar Mohanlal examined at exh. 33, who was also one of the members of the raiding party. Appreciating the evidence of above witnesses, it clearly transpires that when PW 1 Jadeja was in Wankaner Taluka Police Station at about 12 noon on 11/3/2003, he received secret information about the appellant having in possession of contraband substance Ganja. It is pertinent to note that in the secret information, PSI Jadeja was informed about the appellant by his name and about contraband substance which he was carrying and the place where he would be going to be found. As deposed by PW 1 PSI Jadeja, he immediately reduced the secret information into writing and forwarded the same immediately to his superior officer, who is Dy. S.P., Morbi Division. When such is the situation, we are of the considered opinion that the mandatory requirements laid down u/s 42 of the NDPS Act have been fully and duly complied with.

Considering the evidence on record, it clearly transpires that near Wankaner boundary the appellant was found present along with the jute bag. It is true that some of the witnesses depose that at the time when the appellant was spotted near the jute bag, had kept his leg on the jute bag; whereas some of the witnesses only say that he was found present near the jute bag. We do not find it to be an inconsistency going to the root of the prosecution case which would shake the very spectrum of the prosecution case. All the witnesses who were present at the time of search and seizure, categorically state that when PSI Jadeja PW 1 asked the appellant about the jute bag and at that time the appellant stated that the same belonged to him. In presence of appellant, the jute bag was searched and 11 polythene bags containing Ganja were found.

9.1. It appears that the appellant raised a defence that including him, in-all there were 4 accused present near the jute bag. However, seeing the police jeep approaching towards them, the remaining 3 accused made their escape good and only the appellant was apprehended. We have carefully considered the defence raised by the appellant while perusing the entire oral evidence adduced by the prosecution on record, but we find that on behalf of the appellant, a suggestion to this effect was put to all the witnesses and all the witnesses categorically denied the same. It is further pertinent to note that in a further statement recorded u/s 313 of the Cr. P.C., nowhere the appellant stated that at the time of the incident, including himself in-all there were 4 accused persons and 3 accused escaped from the place and only he was apprehended by the police. To put it differently, the defence is not raised by the appellant in his further statement and the only defence raised by the appellant in his further statement is of total denial.

In light of the above discussion and together with considering the presumption contained in Section 54 of the NDPS Act, we are of the considered opinion that the prosecution successfully established the conscious possession of the Ganja of the appellant.

Ld. Advocate Mr. Brahmbhatt submitted that there is non-compliance of mandatory requirements laid down u/s 43 of the NDPS Act. Section 43 pertains to power of seizure and arrest in public place and empowers the officers mentioned in Section 42 of the NDPS Act regarding seizure in public place and to detain and search any person whom he has reason to believe to have committed an offence punishable under this Act. We do not find any mandatory requirement laid down u/s 43 of the NDPS Act which can be said to have been violated in this case.

Considering Hari Singh''s case [supra], Hon''ble the Apex Court held that there must be conscious possession of the contraband article. In that case, the accused persons were sitting on the bags containing poppy husk. On seeing the police party, they tried to slip away. However, the accused were apprehended. The trial Court recorded conviction of the appellant, but High Court directed his acquittal holding that there was no evidence of conscious possession and in any event, the requisite questions u/s 313 of the Cr. P.C were not put to the appellants. The Hon''ble the Apex Court, therefore, dismissed the acquittal appeal preferred by the State of Punjab and confirmed the acquittal recorded by the High Court. Now if the evidence adduced by the prosecution in the instant case is considered, it clearly transpires that the facts and circumstances and the evidence on record in the instant case are totally different than the facts, circumstances and evidence on the record in Hari Singh''s case [supra]. In the instant case, as discussed above at length in this judgment, the appellant alone was found present with the jute bag containing the Ganja. All the witnesses of the raiding party examined by the prosecution categorically state that the jute bag was found from the possession of the appellant. Moreover, if the further statement recorded of the appellant u/s 313 of the Cr. P.C is considered, it clearly transpires that the pointed questions regarding possession of the contraband article Ganja of the appellant were asked by the trial Court to the appellant. Under such circumstances, Hari Singh''s case [supra] does not help the appellant in this appeal.

Lastly, learned advocate Mr. Brahmbhatt for the appellant submitted that it has come on record that at the time when the Ganja was seized, it was wet and contained moisture and, therefore, if the weight of the moisture is excluded, the total bulk would fall within the category amounting to more than small quantity but less than commercial quantity. To appreciate this argument, if the table attached to the NDPS Act is considered, then at Item No. 55 in the table, as against the contraband article Ganja, it is stated that upto 1,000 Grams the quantity would be small quantity, but if it exceeds 20 Kgs, it would be commercial quantity. In the instant case, the Ganja recovered is weighing 20 Kgs and 500 Grams. Moreover, considering the FSL Report exh. 42, it transpires that after about 10 to 12 days from the date of the seizure, the 11 muddamal samples each containing 50 Grams of Ganja were examined by the Scientific Officer of the FSL and there was no weight loss worth the name in any of the samples. Each sample contained 50 Grams of Ganja. Moreover, considering Shiv Kumar Mishra''s case [supra], it clearly transpires that in almost identical situation, when a Ganja containing moisture came to be recovered from the appellant of said case, almost identical contention was raised on behalf of the appellant of the said case before Hon''ble the Apex Court and Hon''ble the Apex Court held that �There is nothing in NDPS Act suggesting that at the time of seizure, weight of the Ganja and the moisture content are to be ascertained separately so that the moisture content can be excluded for determining the actual weight of the Ganja.� In such circumstances, considering the ratio laid down by Hon''ble the Apex Court and considering the peculiar facts of this case that even after 10 to 12 days from the date of seizure when the samples of Ganja were examined by the FSL, no weight loss was revealed, we do not find any merit in the submission made by the learned advocate Mr. Brahmbhatt for the appellant that if the weight loss of moisture is excluded, the sample would fall within intermediate quantity [more than small quantity and lesser than commercial quantity]. It is pertinent to note that in the instant case, 20 Kgs and 500 Grams of Ganja came to be seized. Meaning thereby that the excess quantity of Ganja than commercial quantity was 500 Grams in weight. Nothing is revealed that the weight of the moisture was more than 500 Grams. On the contrary, FSL evidence reveals otherwise that there was no weight loss even after 10 to 12 days of the seizure of the Ganja when the samples were analyzed by the Scientific Officer of the FSL.

In the impugned judgment rendered by the trial Court, the trial Court at length discussed and appreciated the evidence on record and assigning cogent and convincing reasons, came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt against the appellant. We do not find any infirmity in the judgment rendered by the trial Court, which would require any interference by this Court. When such is the situation, we are of the considered opinion that the appeal is devoid of any merit and deserves dismissal.

For the foregoing reasons, the appeal stands dismissed.