2002 Supreme(Guj) 571

Gujarat High Court
Judgename :DEV KANT TRIVEDI, H.H.MEHTA
RAMANBHAI BEHCARBHAI RAMI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 987 of 1997
Decided On : 08/01/2002

Headnote:

Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 17, 18, 20 (b),21 - Criminal Procedure Code - Section 235- Appeals in a nutshell are as follows :-3. 1 as per the case stated in the complaint of Shri Kishorbhai Bahadursinh Jadeja on or about 23rd June, 1996, he was performing his duties as Police Sub-Inspector in Anand Rural Police Station. He received a secret information from his informant that one Prabhatbhai Mahijibhai Gohil (accused No. 1) was carrying on the business of "ganja" and "charas" in village Napad. He made an arrangement to call two independent witnesses, who can work as panch witnesses. Panch witnesses came in the police station. They were informed about the raid to be carried out at village Napad. For this purpose, one preliminary panchnama was drawn during the period from thereafter said, in company of Head Police Constables and Police Constable, left Rural Police Station for Napad by a Government Vehicle. When they reached near Bhathiji Temple in village, on seeing them two persons started to run away from the place. The police persons immediately caught hold of them. They were asked to state their names and addresses. One of them stated his name to be Prabhatbhai Mangabhai resident of village Napad - Vanta (who is appellant of Criminal Appeal No. 1029/97 ). Second person stated his name, resident of village Napad (appellant of Criminal Appeal No. 987/97 ). Said Jadeja suspected that said two persons were having some contraband articles prohibited and therefore, he apprehended them. He asked these two accused as to whether they wanted to be searched in his presence or they wanted to be searched in presence of some superior officer. Thereupon, the accused informed the complainant that they wanted to be searched in presence of other superior officer. Complainant drew a panchnama for the events transpired upto this stage in presence of two panch witnesses, at 18. 15 hours. 3. 3 thereafter, the complainant made a phone to his superior officer, who at relevant point of time, was performing his duties as Circle Police Inspector, Anand. On receiving information, arrived at the place where accused were kept standing by the complainant. informed that two accused that he wanted to search them and asked them as to whether they have any objection for such search. Accused replied that they had no objection. Thereafter, presence of two panch witnesses, searched both the accused one by one.. On weighing that articles, it was found that 7 small packets of "ganja" were weighing in all 70 grams, while 29 small bags of ganja Powder" were found totally weighing 60 grams. 3 small packets of opium weighing 30 grams were found from the house of the accused No. 1. One scale and weight measure of 50 grams were also found from the house of the accused No. 1. 3. 6 as per the prosecution case, weight of 28 small balls of "charas" was 14 grams. Complainant seized all these muddamal articles under panchnama. Representative samples of each article were prepared, properly packed and duly sealed in presence of panch witnesses. For this work, the complainant had drawn a panchnama on the spot. That panchnama came to be completed at 20 hours. Thereafter, complainant prepared his complaint against both the accused. does not fall under section 21 of the NDPS Act, because, case against accused No. 2 is altogether a different one. Case against accused No. 2 is to the effect that he was found with 28 small balls of Charas. As per clause III of Section 2, "charas" is one of the product of "cannabis (hemp)". Looking to case of prosecution against accused No. 2 as reflected in complaint, at the best, case against accused No. 2 may fall under Section 20 (b) of the Act. Section 20 (b) is for contravention of Section 8 of the Act in relation to cultivation of any cannabis plant. Though the charge was framed against accused No. 2 for an offence punishable under Section 20 (b) of the Act, accused No. 2 is not convicted for that offence. He is convicted for an offence punishable for which, there is no case at all against him. Therefore, conviction of accused No. 2 is manifestly illegal and unwarranted and in no case, it can be said that judgement of conviction and sentence against accused No. 2 is correct and legal one. For a moment, if it is believed that case against accused No. 2 is proved for the offence punishable under Section 20 (b) of the Act then, in the conviction appeal, this court cannot alter the conviction because, there is no acquittal appeal from Government side for acquittal of accused No. 2 for an offence punishable under Section 20 (b) of the Act. In the result, these two appeals deserve to be allowed. Conviction and sentence of both the accused vide judgement Ex. 28 dated 11/09/1997 rendered by Additional Sessions Judge, Nadiad in Special NDPS Case No. 9 of 1996, is quashed and set aside. Accused be set free forthwith, provided they are not required any more in judicial custody for any other case -Appeal is Allowed.