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2003 Supreme(Guj) 325
Gujarat High Court
Judgename :N.G.Nandi, RAVI R.TRIPATHI
MOHMAD FAROOQ MOHMAD HUSEN MUNSHI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 786 of 1998
Decided On : 06/19/2003
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 29 and 18 read with Section 29 - Criminal Procedure Code, 1973 - Section-374 (2) - Appeals filed are directed against judgment and conviction rendered by Additional City Sessions Judge by which appellants-accused are convicted and punished with rigorous imprisonment for years and a fine - In default to undergo rigorous imprisonment for six months Sessions Judge also ordered that as accused are in jail and there is no order releasing them on bail period during which accused have remained in jail be given as set off - Police Inspector gave his introduction as a Officer and also that of two and police personnel of raiding party informed them that police has received information that they sell narcotic drugs hence they are required to be searched if they want to call any other Officer or Magistrate for their search being taken in presence an officer an arrangement can be made - Those three persons declined for same and volunteered themselves for search - They were also informed that if they want to search and the police personnel they can do so to which also they declined - Accused before commencing search of their person and offer in writing made to them bearing signature of the accused along with office copy - A copy of seizure memo of contraband recovered from accused along with office copy and arrest memo of accused in connection with aforesaid complaint bearing signatures of three accused and Police Inspector along with office copies were given to Police Station - Offence was registered and further investigation was undertaken - On receipt of complaint contraband seized was sent to Forensic Science Laboratory (FSL) for analysis - Held, Respondent-State rightly invited the attention of the Court to a judgment of the Division Bench of this Court in Criminal Appeal rendered on Court has dealt with a similar contention - Precise contention raised by counsel appearing in said case was that evidence of police officers is not supported by an independent witness and therefore prosecution case should be disbelieved - Division Bench was pleased to answer said contention by relying upon a judgment of Apex Court in matter between State of reported in it is held that presumption that a person acts honestly applies as much in favor of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds - What is laid down for guidance of the Court is that attitude to distrust and suspect police officer without good ground therefore could do neither credit to magistracy nor good to public and it can only run down the prestige of police administration – Appeal dismissed (Para 14)
( 1 ) ALL these appeals filed under Section-374 (2) of the Code of Criminal Procedure, 1973 are directed against the judgement and conviction dated 3rd July, 1998 rendered by the learned Additional City Sessions Judge, Court No. 13, Ahmedabad-16 in Sessions Case No. 178 of 1997, by which the appellants-accused are convicted under Sections 29 and 18 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act" for short) and punished with rigorous imprisonment for 10 years and a fine of Rs. 1,00,000=00 (Rupees One Lac Only) each, in default to undergo rigorous imprisonment for six months. The learned Sessions Judge also ordered that as the accused are in jail and there is no order releasing them on bail, the period during which the accused have remained in jail be given as set off.
( 2 ) THE case of the prosecution is that on 3rd June, 1997, the Police Inspector of NDPS Cell, CID Crime, Gujarat State, Ahmedabad, while in office, received information from a private informant that near Dariapur Tambu Chowky, on Jordan Road - the way leading to Prem Darwaja on left hand side on footpath near `star Restaurant between 4. 00 to 5. 00 p. m. in the evening, three boys named (i) Salim wearing printed coloured shirt; (ii) Mohmmad Farooq Munshi, who is thin, having `nadachhadi (a cotton string of various colours) tied round his neck, wearing printed shirt; and, (iii) Asifkhan Pathan wearing full sleeve saffron colour checks shirt and light black colour jeans, are sitting for selling narcotic drugs. He made an entry in the register maintained for recording such private information and intimated the same in writing to the Superintendent of Police of NDPS Cell, Ahmedabad. He called the raiding party personnel, namely, Harjitsingh Jorawarsingh Parmar, Head Constable, N. N. Gosai, Head Constable, R. B. Thaker, Police Constable, D. A. Chavda, Police Constable, V. M. Chavda, etc. belonging to NDPS Cell. On their arrival along with two panchas, they were made aware of the information received. A preliminary panchnama was drawn between 15. 30 to 15. 45 hours. The police personnel, on reaching Wadigam Tambu Chowky, Dariapur from the NDPS Office at New Mental, alighted of the vehicle, proceeded towards `star Restaurant on Jordan Road, Prem Darwaja side and scattered half on the left side and half on the right side of the road. There, they found three persons, answering the description contained in the information, smoking "bidi". They were intercepted by the Head Constable-Harjitsingh, Head Constable-N. M. Gosai and Police Constable-D. A. Chavda. The Police Inspector, Shri Tahelramani, with the panchas and other personnel of the raiding party reached there. On inquiry, in the presence of the panchas, they disclosed their names to be Salim Abdul Karim Pathan, resident of Nagina Pol, Dariapur, Ahmedabad, Mohmad Farooq Mohmad Husain Munshi, resident of House No. 2554, Char Mulla-Ni-Pol, Chandan Talavadi, Dariapur, and Asifkhan Anwarkhan Pathan, resident of House No. 2955, Kazi Mohalla, Popatiawad, Dariapur. The Police Inspector gave his introduction as a Gazetted Officer and also that of the two panchas and the police personnel of the raiding party, informed them that the police has received the information that they sell narcotic drugs, hence, they are required to be searched; if they want to call any other Gazetted Officer or Magistrate, for their search being taken in presence of such an officer, an arrangement can be made. Those three persons declined for the same and volunteered themselves for the search. They were also informed that if they want to search the panchas and the police personnel, they can do so, to which also, they declined. On search of one of the three, namely, Salim, from the right pocket of his pant, three small packets hot sealed, in a plastic bag, were found containing light brownish powder, which on smelling in presence of the panchas, were found having a typical smell of a na
