Muhammad Tayyab Shaikh S/O ... vs Union Of India
2023 Latest Caselaw 6989 Guj

                                                                            NEUTRAL CITATION




     R/CR.MA/11079/2023                        ORDER DATED: 22/09/2023

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      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION NO. 11079 of 2023
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 MUHAMMAD TAYYAB SHAIKH S/O MUHAMMAD NIHAL SHAIKH
                            Versus
                      UNION OF INDIA
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Appearance:
MR RAJ K. AWASTHI for MR A.R.KADRI(7330) for the Applicant(s)
No.1
for the Respondent(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
MS KRINA P. CALLA, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                          Date : 22/09/2023
                            ORAL ORDER

1. This application is filed under Section 439 of the Code of

Criminal Procedure, 1973, by the applicant, who is an accused

of an offence under Section 8(c), 20(b)(ii)(C) read with Section

29 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter referred to as "the Act").

2. Narcotics Control Bureau, Ahmedabad Unit, based on

prior information, carried out a search near Adalaj Toll Plaza in

a Traveller Bus coming from Delhi going to Mumbai bearing

registration No. RJ-19-PB-4007, which led to seizure of 6.359

Kgs of Charas which is commercial quantity from the joint

possession of present applicant along with other co-accused

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found from a red coloured bag, identification mark is also

mentioned in the panchanama. While both were found

travelling in the bus, came to be arrested after accused failed

to account for the contraband found from their possession.

Pursuant thereto, an investigation is carried out by the

Narcotics Control Bureau Officers and complaint came to be

filed against both of them. The said complaint came to be

registered as NDPS Sessions Case No. 8 of 2022 pending in the

District and Sessions Court, Gandhinagar.

3. Heard Mr. Raj K. Awasthi, learned advocate for

Mr. A.R.Kadri, learned advocate for the applicant.

3.1 According to his submission, the seizure panchanama,

whereby commercial quantity of Charas found, lacks in so

many details, and therefore, it cannot be presumed that

Charas is found from the possession of the accused. He has

also submitted that nothing is mentioned in the panchanama

as to in which berth or seat number the accused were

travelling, from where the contraband is seized, and no option

is given to them to have their search in presence of any

Gazetted Officer, and therefore, seizure panchanama cannot

be relied on for the purpose of even denying bail to the present

applicant.

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3.2 He has further submitted that the Narcotics Control

Bureau Officers are supposed to record entry in general diary /

station diary / daily diary when they receive an information in

respect of cognizable offence received in a police station, as

mentioned in para 120.8 in the case of Lalita Kumari v.

Govt. of U.P. & Ors., reported in (2014) 2 SCC 1.

3.3 He has further submitted that identification of the

accused through photographs, that too, after a prolonged

period, loses its significance and it is of no use.

3.4 He has further submitted that statement of the driver

and conductor of the bus, wherein the accused were travelling,

came to be recorded nearly after 4 months to the date of

incident, and therefore, on which berth or seat they were

travelling mentioned by them is of no use.

3.5 He has further submitted that even travel tickets are

also not seized by the officer concerned, which creates doubt

about the genuineness of the prosecution itself. Therefore, he

has submitted that the accused deserves to be enlarged on

bail pending trial.

4. As against that, Mr. Kartik V. Pandya, learned Standing

Counsel for Narcotics Control Bureau, submitted that after

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following every required procedure under "the Act", the

prosecution is launched against the applicant and co-accused.

4.1 He has further submitted that the prior information

received has been reduced into writing and it is also forwarded

to the higher officer, as coming out from the record itself.

4.2 He has further submitted that since there was no search

of a person, as contraband found from bag of the accused,

there is no requirement of following even Section 50 of "the

Act".

4.3 He has further submitted that though some minute

details may have been missing to be recorded in the

panchnama, on that ground, seizure of commercial quantity of

Charas cannot be thrown overboard.

4.4 He has further submitted that not only the applicant is

having criminal antecedent of the very offence under "the Act",

he is convicted in the offence and has undergone sentence

also.

4.5 He has further submitted that the said conviction can be

termed as a previous conviction under "the Act", and

therefore, provision of enhanced penalty can also be invoked

by the Narcotics Control Bureau, and therefore, the applicant -

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accused, who is found in possession of more than commercial

quantity of Charas, may not be enlarged on bail.

5. Mr. Raj K. Awasthi, learned advocate for Mr. A.R.Kadri,

learned advocate for the applicant, in reply, clarified that

earlier conviction of the applicant under the provisions of "the

Act" is for an offence under Section 8(a) and 27 of "the Act",

for which he confessed to the crime and is sentenced till rising

of the Court and a fine of Rs. 1,000/- was imposed upon him.

Therefore, he has submitted that it is not an offence of

possessing commercial quantity on previous occasion, and

therefore, it may not be considered as a previous conviction of

the applicant so as to impose enhanced penalty.

6. Having heard the learned advocates for the appearing

parties and going through the contents of the complaint as

also the documents produced along with the application and

additional documents furnished by the learned advocate for

the applicant, it appears that seizure of 6.359 Kgs of Charas

found from a bag carried by applicant along with co-accused in

a joint possession, as clothes of both of them found from the

said bag containing commercial quantity of Charas, as

revealed from the panchnama itself, it cannot be said that

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applicant is an innocent person and he is not guilty of the

offence under "the Act".

6.1 If seat number or berth number, where applicant and

other co-accused were travelling, is not mentioned in the

panchanama, it will not render presumption of a commercial

quantity of Charas from the joint possession of both the

accused invalid, which is seized in presence of two panchas.

However, what is required to be stated in the panchanama and

whether that is followed during seizure or not, would be

determined on conclusion of full-fledged trial when evidence is

led before the Court where the applicant - accused may cross-

examine the panch-witnesses for any shortcomings recorded

the panchnama, if at all it is there.

6.2 The argument that identification by photograph of the

accused, in absence of any test-identification parade, is of no

use. He has submitted that there is no test-identification

parade conducted and when there is identification of the

accused through photograph after 4 months of the incident, it

is of no use. However, the identity of the accused is not in

dispute/question in the present case for the simple reason that

he was arrested on the spot in possession of commercial

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quantity of Charas, in presence of two panchas. Therefore, his

identity was never in dispute. The identification conducted

through photograph after 4 months is for the purpose of

corroboration only and it is not impermissible.

6.3 So far as argument based on para 120.8 of the judgment

of Supreme Court in the case of Lalita Kumari (Supra) that

prior/secret information should have been recorded either in

general diary/station diary/daily diary, is again misconceived

as Narcotics Control Bureau is not a police station so as to

have those diaries for recording thereof, and therefore,

information relating to cognizable offence to be recorded in the

police station will not be of any use in support of the

application for bail. The further submission that

outward/inward number is also not mentioned in the

prior/secret information, it is on a loose piece of paper and

having even no seal of the higher officer, is also of no use as

law requires recording of a secret/prior information in writing

and superior officer is to be informed under the provisions of

"the Act". Since it is already complied with, whether it bears

outward or inward number or not, all these questions are

required to be determined at the time of trial so as to render

the whole procedure invalid, and which has no bearing on the

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main issue of an offence being committed by the accused

possessing commercial quantity of Charas.

6.4 Over and above that, there is a presumption of 'culpable

mental state', when the accused is found in possession of

commercial quantity of Charas under Section 35 of "the Act",

coupled with the 'presumption from possession of illicit article',

as provided under Section 54 of "the Act". Under Section 54 of

"the Act", burden is on the accused to rebut the presumption

from possession of illicit article.

6.5 When commercial quantity of Charas is found from the

possession of the applicant, of course joint possession with co-

accused, as referred to hereinabove, I am unable to record

conclusion that he is not guilty of an offence under "the Act"

and will not commit any offence if released on bail.

7. In view thereof, I am unable to exercise discretion

releasing the applicant on bail and it is hereby rejected.

Rule is discharged.

(UMESH A. TRIVEDI, J.) Raj