1998 Supreme(Guj) 575

Gujarat High Court
Judgename :A.L.DAVE, J.N.Bhatt
KAMLESH PARMANAND GANGWAR - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 697 of 1993
Decided On : 10/15/1998

Headnote:(a) Narcotic Drugs & Psychotropic Substances Act, 1985 — Secs. 42(1) & 42(2) — Requirement of informing the immediate superior — Compliance mandatory where officer conducting search, seizure or arrest is one falling under Sec. 42(1) — In the present case the entire proceedings of entry, search seizure and arrest is carried out in presence of Superintendent of Police who himself is Gazetted Officer and covered under Sec. 42(2) — There was therefore, no necessity of informing the superior before search and seizure.

       The entire procedure of entry, search, seizure and arrest is carried in the presence of Superintendent of Police who is himself a gazetted officer and would therefore fall under the category of Sec. 41(2) of the NDPS Act. The purpose behind the requirement of informing immediate superior as provided under Sec. 42(1) of the Act is to protect the interest of a citizen and to eliminate the possibility of any manipulation or misuse of power. Thus the spirit of letter of law is virtually fulfilled in the instant case when the PSI immediately informed his superior though orally and this superior officer immediately respondent to the information, rushed to the police station and carried out the entire process of entry, search, seizure and arrest. The result is that legally requirement of Sec. 42(2) is not required to be fulfilled and factually and virtually and in spirit and letter of law, the requirement was fulfilled. The argument therefore that the entire trial would stand vitiated for want of compliance of Sec. 42(2) of the NDPS Act therefore, cannot be accepted.

       [Para 8]

       (b) Narcotic Drugs & Psychotropic Substances Act, 1985 — Secs. 22 & 23 — Conviction — Finding of — Validity — Presence of Superintendent of Police at the time of raid is fully established by the statement of Exh. 46 and the Panchnama itself which bears his signature — Question of violation of Sec. 42(2) therefore, does not arise — Infirmity with regard time of raid has also no force because Yashpal Exh. 44 has himself admitted that he is not certain about the timing aspect — Any controversy about time introduce by the witness Exh. 44, therefore does not survive on account of his own statement — Finding of some powder of `Charas in muddamal not material because the prosecution has produced evidence of witnesses who had handled the muddamal till it reached to FSL — Prosecution can not be doubted on that account — Also non-production of seizure memo is only procedure lapse which does not affect the substratum of prosecution case — The last but the least is the argument of creating doubt on account of the fact that accused No. 1 was in the hospital as indoor patient on 31.5.1991 till 6 P.M. & therefore, benefit of doubt must go to accused appellant — The argument is not sustainable because any suspecious circumstance about the participation of one accused can not be ground of suspecious about the other co-accused — Out come is that prosecution has been able to prove the case against appellant — There is no force in the appeal — It is therefore, dismissed.

       Second argument was that the presence of Superintendent of Police is doubtful. But that possibility stands ruled out from the deposition of PSI Shri Shukla Exh. 46. It is clear from the deposition of Shukla and his complaint that they had left the police station along with Superintendent of Police. This aspect gets corroborated by the fact that the panchnama is drawn before the Superintendent of Police and the Superintendent of Police has signed the same as having been drawn before him.

       [Para 9]

       It was contended that according to Capt. Yashpal Exh. 44 he reached the venue at about 10.30 a.m. to 11.00 a.m. on the date of the incident and at that time people had gathered and the police personnel were also present. Against this, the panchnama indicates the timing between 14.10 to 18.30 hours and therefore, it was argued that the entire procedure is doubtful. However a close scrutiny of the deposition of this very witness indicates that during cross examination he stated that he is not sure about the timings.

       The deposition of PSI Shri Shukla indicates that Ravi Saigal had approached him at 13.55 hours and therefore, taking an over all view of the evidence, there remains no doubt about the timing aspect particularly when Capt. Yashpal is not certain about the timing aspect.

       [Para 10]

       The FSL report indicates that the packet containing 565 sticks of contraband also carried some powder in it which was also found to be Charas. It is also true that the panchnama and the witnesses to the panchnama do not mention anything about the presence of charas is powder from or the seizure of any contraband in powder form. But the important aspect that required to be considered is that the muddamal was seized and sealed on 31.5.1991. Thereafter, it was sent to the police station, kept in the lock and on the next day it was sent to the FSL i.e., 1.6.1991. The contraband was analysed by the FSL on 18.7.1991. During this time, the muddamal may have been handled and shifted for a number of times and obviously the sticks may he have shedded some power.It is nobodys case that the muddamal was not properly sealed. It is also nobodys case that there was any tampering with the sealing aspect. The prosecution has examined the witnesses who had handled the muddamal till it reached the FSL and that being so there is no question of doubting the prosecution case only because some powder is found from the sealed packet and the argument therefore, cannot be accepted.

       [Para 11]

       As regards non production of seizure memo it was only a procedural lapse and it cannot affect the substratum of the prosecution case. We have closely scrutinised the panchnama and the FSL report and we do not find any discrepancy in the number of parcel that are seized at the time of drawing the panchnama and they reached the FSL and therefore, that ground also cannot be accepted.

       [Para 12]

       The last but not the least, is the argument that the conduct of the original accused no. 1 Gadhia Chunilal Mathurdas is doubtful as he was in the hospital as an indoor patient on 31.5.1991 till 6.00 p.m. and [therefore, the benefit of doubt should go to the appellant. In this regard it may be noted that doubtful or suspicious conduct of a co-accused cannot nullify the effect of a sound case against another co-accused.

       [Para 13]