Gujarat High Court
State Of Gujarat vs Pradeep Jayantilal Pandya on 4 April, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
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R/CR.A/1085/1995 JUDGMENT DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1085 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
PRADEEP JAYANTILAL PANDYA & ORS.
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Appearance:
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3,4
MR KANDARP H DHOLKIA(3704) for the Opponent(s)/Respondent(s) No. 2
MR RAJESH M AGRAWAL(1253) for the Opponent(s)/Respondent(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 04/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. When the matter is called out, learned advocate for the
respondents are absent.
2. The present appeal is filed by the State under Section 378 of
Code of Criminal Procedure against the judgment and order dated
03.07.1995 in Criminal Case No.4 of 1994 by learned Additional
Sessions Judge and Special Judge, Jamnagar, by which the learned
Sessions Judge has recorded and acquittal of the respondent accused
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from the charges of Sections 20(B)(2), 25, 29 read with Section 8C of
the NDPS Act (for short "the Act").
3. It is a case arising out of and FIR 228 of 1993, registered with
Jamnagar City "A" Division Police Station, Jamnagar against four
accused persons for offences under Sections 8, 20, 22 and 27 of the
Act. It is a case where the four accused persons after due investigation
where charge-sheeted on 03.02.1994, with chargesheet No.43 of 1994.
As per the chart-sheet on 07.11.1993 at 18:35 hours, the respondents
accused were caught making balls (ladoos) of the narcotic substance
Charas in the residential house of accused No.1 at house named
Satyam Shivam Sundaram in Jalani Jar Ram Kuva Wali Sheri. The
quantity of Charas was 4 kg and 69 gms.
4. The charge came to be framed vide Exhibit 6 and after the due
trial, the respondents accused came to be acquitted. The appeal filed by
the State came to be admitted by the order dated 04.04.1996. Pending
the appeal, this court has recorded in its order dated 01.09.2015 that
the original No.4 has has expired and therefore the appeal qua him
stands abated. Thereafter again in order dated 22.09.2022, this court
has recorded that accused No.3 has also expired and therefore appeal
qua the accused No.3 also stood abated.
5. Learned Additional Public Prosecutor while taking this Court
through the evidence on record in the form of panchas has submitted
that though the panch witnesses have not supported the prosecution,
however, the police witnesses who have supported the drawing of
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Panchama ought to have been believed. It is further submitted that an
error is committed by the Sessions Court in concluding that there is
non-compliance of the provisions of the Act, particularly Section 41, as
a result of which it is fatal to the prosecution.
5.1 It is submitted that such a requirement under Section 41 of the
Act was not flouted by the prosecution as at the time of raid itself, the
Gazetted Officers were present and therefore their presence itself ought
to have been treated as compliance of Section 41 of the Act. An error is
therefore committed that non-informing the superior officers was in
violation of the requirement of Section 41, as a result of which an
erroneous acquittal is recorded.
6. Though sufficient time was given to the learned advocate
representing the case of the respondents accused and the matter was
kept on board from several dates, no one has appeared on behalf of the
respondents accused and therefore the matter was taken up for hearing
with the assistance of learned Additional Public Prosecutor.
7. It is the case of the prosecution that on 07-11-1993 at about
21:35 hrs or around that period, all the four accused, by aiding and
abetting one another, and by making charas (cannabis) balls from the
vessel filled with charas in the room on the ground floor of a building
(apartment) namely Satyam Shivam Sundaram, owned/possessed by
the accused no. 1 in this case, which is situated in Ramkuva street,
Jalani Jar, Jamnagar, aided one another; and respondents-accused did
not have any pass/permit or authorization to keep the said quantity of
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charas in your possession and thus, the accused were found to have
illegal possession of the said substance in total quantity of 4.69 kg i.e.
four kilo sixty-nine gram, amounting to approximate value of Rs.
1,60,280/- during the police raid.
8. The prosecution has examined Manharlal Kantilal Bhuva PW1 at
Exh.13, who is the panch witness for carrying out weight of the ceased
contraband. However, this witness has not supported the case of the
prosecution and declared hostile. In the cross examination with the
permission by the learned Additional Public Prosecutor, except for
narration of his statement before the police, no evidence is coming out.
9. The prosecution has thereafter examined Bakulbhai Babulal PW2
at Exh. 16, who is the second panch for carrying out weight, and he has
also not supported the case of prosecution.
10. The third witness is Sri Salim Suleiman-PW3, who was examined at
Exh.17, who is the witness, who is carrying out the activity of weighing
of the contraband. He too has been declared hostile.
11. Thereafter, the prosecution has examined Kanailaya Chhagalal
Patel, PW-4 at Exh.18, who is a Police Officer of the rank of DYSP, who
has conducted the raid and also carried out Panchama and for seizure
and sampling. It is in his deposition, the root of carrying out the raid has
come on record, wherein he has deposed that on 07.11.1993, while he
was on duty along with police inspector, Shri Merujay and other staff
members, at that time, Shri Merujay received a secret information from
one person who came to the police station and took P.I. Shri Merujay on
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the side and gave him some information. On the basis of which this
witness has given the information to this witness and thereafter the raid
was organized.
12. The prosecution has examined Dhelubha Banesinh as PW-5 vide
Exh. 25. He is the Head Constable who registered the FIR and also
received the custody of the Muddammal to be kept in custody for
investigation and sending it to the FSL. PW-6, is a constable Ranjitsinh
Chandubha is examined at Exh.31, who handed over the samples
drawn of the contraband to the FSL
13. The prosecution has thereafter examined Shri Vasantrai
Kanjibhai Gohil as PW-7 vide Exh.35, who is an officer of the Forensic
Science Laboratory and has given an opinion about the sample sent for
analysis, concluding that the samples sent for analysis were of Charas.
PW-9 is also an FSL officer who is examined at Exh.43 Shri Shukhlal
Keshvaji Doshi, who is the Scientific Officer at the FSL who had carried
out certain tests to conclude that the substance is Charas and FSL
report was exhibited vide Exh.45 through this witness.
14. The prosecution has lastly examined Police Inspector
Lalmahammad Jumakhan Merujay as PW-10 vide Exh. 47, who has
conducted the entire investigation and filed the charge-sheet.
15. At the outset, it may be observed that apart from the two
independent witnesses, who were called to the police station for
weighing the contraband, no other independent witnesses have been
examined, and as a matter of fact, no Panchama has been drawn for
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siezure of the contraband in presence of any independent witness and
carried out any Panchama, which could be exhibited as an evidence of
seizure of the contraband from the place identified as the residence of
accuse No.1.
16. The entire case revolves around the compliance of the necessary
provisions. The defence had taken up a defence of non-compliance of
section 50 of the Act, which is a mandatory provision as before carrying
out of the search of the respondents-accused, the option as
contemplated under Section 50 of the Act to be searched by a Gazetted
Officer was not offered to the accused persons. However, this argument
was negatived by the Sessions Court in the impugned judgment and
order, holding that the search was carried out that of the premises and
not that of the person or body of any of the accused and therefore the
compliance of Section 40 of the Act was not required. In the facts of this
case in arriving at such conclusion, the Sessions Court has relied upon
various decisions of the Apex Court. As the Court has held against the
defence on this point, no further examination is required at the hands of
this Court.
17. However, with regard to the compliance of Sections 41 and 42 of
Act, the Court finds that as per the statement of the complainant, on the
day of the incident, when Mr. Patel, DySP, Mr. Merujay, Police
Inspector and Mr. Charan, Police Inspector were present in the
Khambhaliya Gate Police Chowki, Jamnagar at evening, one person
orally tiped-off Mr. Merujay outside the Police Chowki; and based on the
oral information, all the three aforesaid police officers, raided the
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building namely Satyam Shivam Sundaram, located near Jalani Jar,
along with the police staff and in presence of the panchas. According to
this statement of the complainant, the raid was conducted based on the
information received in advance; and all the three police officers were
authorized officers to conduct such a raid as per the notification of
Government of Gujarat, dated 15.06.1987. As per Section 41(2) of the
Act, it has been made mandatory to take down such oral information
received by the officer in writing. Mr. Merujay admitted in his cross-
examination that the oral information provided to him by the informant
was not taken down in writing. Mr. Merujay also admitted in the cross-
examination that such information was not conveyed to the
Superintendent of Police. There is no evidence regarding taking down
such oral information in writing; and therefore, it can clearly be stated
that the information provided by the informant was not taken down in
writing; and hence, it transpires that the provisions of the Section 41(2)
and 42(1) have been violated. As per the evidence produced by Mr.
Merujay and Mr. Patel, the raid was conducted at about 06:35 pm. As
per Mr. Merujay's statement, lights in the room were on. The raid was
conducted on 07.11.1993. The timing of sunset was 06:04 pm, which
transpires from the notes recorded in the rojkam diary (day book), on
which the advocate for the defendant, Mr. H.O.Bhatt has placed
reliance. These facts suggest that the action was taken after the sunset.
According to the proviso of the Section 42(1) of the Act, the said police
officers were authorized to search the building or place even without
obtaining search warrant or authorization letter; however, before
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conducting such a search, it was mandatory to record the grounds on
which the warrant could not be obtained. It transpires from the
evidences produced by both the police officers that no such record has
been made. Thus, it was the duty of both the police officers to take
down the information provided by the informant in writing under Section
42(1) of the Act, and to record the grounds of belief and to send the
copies of both the documents to their immediate superior official under
Section 42(2); which they have not complied with; and thus, in the
present case, violation of the imperative provisions of the Section 42 as
per the principles established by the Hon'ble Supreme Court.
18. The Court has also perused the impugned judgment and order
and particularly with regard to the requirement of Sections 41 and 42 of
the Act, the Sessions Court has observed as under:-
"45. In the present case, Mr. K.C. Patel, Mr. Merujay and Mr.
Charan were authorized officers as per the Section 41 and 42 of
the Narcotics Act, and based on the oral tip-off received by any of
the officers among them, they were competent to enter and
search such building, conveyance or place between sunrise and
sunset and to detain and search, and arrest the offender under
Section 42(1). The officers were bound to take down such oral
information in writing, and to send a copy thereof to their
immediate superior official. However, in the present case, such
information has not been taken down in writing, and as per
Section 42(2), a copy thereof has also not been sent to the
superior official. According to the above judgment passed by the
Hon'ble Supreme Court in Balbir Singh case, taking down the
oral tip-off in writing and sending a copy thereof to the superior
official have been made mandatory i.e. imperative; and therefore,
it has been proved that such mandatory provisions have been
violated in the present case. According to the proviso of the
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Section 42(1), these officers were authorized to enter and search
the building even after the sunset, however, before exercising
such authority, it was mandatory to take down the grounds of
belief in writing as to why it was necessary to conduct the search
after the sunset; and a copy of such a note was required to be
sent to the immediate superior official. In this case, it has been
proved that the disputed building was searched after the sunset,
and therefore, it was necessary for the officers conducting the
search to record the grounds of their belief in writing and to send
copy of such a note to the immediate superior official. The
Supreme Court has held in its judgment in Balbir Singh case to
comply with both the provisions. No such note has been prepared
and the copy has also not been sent to the superior official, and
therefore, it has been proved that imperative provisions of the
Section 42(2) have been violated."
19. In a recent decision of the Apex Court in case of Smt.
Najmunisha and Another v/s. Sate of Gujarat and another, reported in
AIR 2024 Supreme Court 2778, specifically dealing with the
requirement of Section 42 of the Act and after observing non-
compliance of Section 42 of the Act and other mandatory provisions of
the Act, the Hon'ble Apex Court had set aside the judgment of the High
Court as well as trial court and acquitted the appellant therein by giving
benefit of doubt.
20. The Apex Court in case of Smt. Najmunisha (supra), the case
was examining the facts where the searches were conducted in an auto
rickshaw, which was abandoned and the house of accused No.1, which
were treated to be two different transactions and following of the
necessary safeguards as contemplated under the Act, the Court took
into consideration about the compliance of Section 42 of Act after
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quoting the section in para 30. The Apex Court in para 31 observed
about the application of Section 42 of the Act, which would read as
under:
"31. From the perusal of provision of Section 42(1) of the NDPS Act
1985, it is evident that the provision obligates an officer empowered by
virtue of Section 41(2) of the NDPS Act 1985 to record the information
received from any person regarding an alleged offence under Chapter
IV of the NDPS Act 1985 or record the grounds of his belief as per the
Proviso to Section 42(1) of the NDPS Act 1985 in case an empowered
officer proceeds on his personal knowledge. While the same is to be
conveyed to the immediate official superior prior to the said search or
raid, in case of any inability to do so, the Section 42(2) of the NDPS
Act provides that a copy of the same shall be sent to the concerned
immediate official superior along with grounds of his belief as per the
proviso hereto. This relaxation contemplated by virtue of Section
42(2) of the NDPS Act 1985 was brought about through the
Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this
position, the Section 42(2) mandated the copy of the said writing to be
sent to the immediate official superior "forthwith".
21. Applying the aforesaid observation to the facts before the
Supreme Court, it concluded in para 46 and 47 as under:
"46. From the aforementioned, we are of the view that the raid/search
conducted at the house of the Accused No. 01 and Accused No. 04
was not based on the personal knowledge of Mr Tomar, rather it was
an action on the part of raiding party bereft of mandatory statutory
compliance of Section 41(2) of the NDPS Act 1985.
47. Furthermore, even if the learned Counsel for the Respondent No.
02 would justify the raid at the house on account of "reason to believe
from .... information given by any person and taken down in writing" as
per Section 41(2) of the NDPS Act 1985, still the prosecution is not
able to establish its case beyond reasonable doubts. Because the
secret information, as received by Mrs Chaube in the present facts was
limited to the apprehension that Accused No. 04 was to carry
contraband via an auto rickshaw from a particular route. There is no
reference to the apprehension of existence of contraband in the house
of the Accused No. 04 in the said recorded information. Thence, the
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raid at the house of the Accused No. 01 and Accused No. 04 is in
violation of the statutory mandate of Section 41(2) of the NDPS Act
1985 and the ratio in the precedent of Balbir Singh (supra) and Karnail
Singh (supra). Consequently, the conviction of Accused No. 01
premised on the recovery of 2.098 kilograms of charas from the house
is not in consonance with the mandatory statutory compliance
of Section 41(2) of the NDPS Act 1985."
22. The facts before this Court, as having appeared on the record
being quite similar to the facts discussed by the Apex Court, in the case
of Smt. Najmunisha (supra), the Court is of the view that no interference
is required with the impugned judgment and order of the Sessions Court
dated 03.07.1995 in Criminal Case No.4 of 1994 by learned Additional
Sessions Judge and Special Judge, Jamnagar.
23. The Court may also draw strength from the decision of the Apex
Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in
(2022) 3 SCC 471, wherein the Apex Court has examined the case law
with regard to the power of the High Court to overturned the decision of
the Sessions Court where an another view is possible. Examining the
case including that of Chandrappa & Ors. vs. State of Karnataka
reported in (2007) 4 SCC 415, the Apex Court has culled out the
general principles regarding the powers of the Appellate Court while
dealing with the appeal against the order of acquittal. The Apex Court
has held that the appellate court has full power to review, re-appreciate
and reconsider the evidence upon which the order of acquittal is
founded. However, the appellate court has to keep in mind that in case
of an acquittal, there is a double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
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fundamental principle of criminal jurisprudence, and thereafter, upon
securing of acquittal, the presumption is further reinforced, reaffirmed
and strengthened, and therefore, whenever there are two reasonable
conclusions are possible on the basis of the evidence on record,
ordinarily, the Apex Court would not disturb the findings of acquittal
recorded by the Trial court.
24. In the result, the appeal fails and is dismissed. The judgment and
order of acquittal dated dated 03.07.1995 in Criminal Case No.4 of 1994
by learned Additional Sessions Judge and Special Judge, Jamnagar.
stands confirmed. Bail and bail-bonds of the accused, if any, stand
discharged. Records and proceedings be sent back to the concerned
trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SIDDHARTH
