2005 Supreme(Guj) 91

Gujarat High Court
Judgename :DEV KANT TRIVEDI, K.M.MEHTA
RAMDHARISING BHAMDARSING - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL 1131 of 2000
Decided On : 02/17/2005

Headnote:Point in Issue :

       Narcotic Substance - Recovery from possession of accused appellant - Finding of.

       Head Note :

       Narcotic Drugs & Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Section 8(c) read with Sections 21, 35, 42, 50 & 54 - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Section 235(2) - [Indian] Evidence Act, 1872 (Central Act 1 of 1872) - Section 134 - Conviction - Recovery of charas - Finding of - Sustainability - On information Narcotic raiding party cought the accused appellant and recovered 900 grams of charas from him and completed the formalities complying with mandatory provisions under Sections 42 & 50 of the Act - The sample of the offending article was sent FSL and it was reported to be charas - Contention by learned Counsel for accused appellant that prosecution has not examined one Constable of raiding party and second Panch witness of recovery which creates doubt about prosecution story is devoid of substance and cannot be accepted - It is settled law that prosecution is not required to multiply evidence - What is relevant is a quality of evidence - Some contradictions pointed out in the matter of turning noted in Panchanama and with regard recovery of money are also insignificant in view of cogent and reliable evidence with regard recovery of charas from possession of accused appellant - There is no question of raising any doubt in the case of prosecution, therefore, question giving benefit of doubt does not survive - Court also considered the question of releasing the accused appellant on account of his advance age of 97 years and held that in view of the nature of offence which affects the public health accused could not be released merely on account of age consideration.

       Held :

       Even if it is assumed that Section 50 of the NDPS Act is applicable to the facts of the case then as per the oral and documentary evidence led by the prosecution, in Courts view, the prosecution has complied with the mandatory provisions of Section 42 and Section 50 of the Act and the finding of the learned Judge that prosecution has complied with the mandatory requirements of Section 50 of the NDPS Act is legal and correct. In view of the same, the contention of the learned A.P.P. deserves to be accepted and also the finding of the learned trial Judge deserves to be accepted. [Para 5.4]

       As regards second contention that prosecution has not examined the Police Constable Mr. Dantani and second panch witness, Court is of the view that prosecution has examined one panch witness Mr. Bhimjibhai Manilal Marwadi at Exh. 8, PW 1, to prove the panchnama. The prosecution has examined the said witness to prove that in his presence the police officers have seized a bag from the accused which contained the offending substance from the possession of the accused. Though this witness has been subjected to gruelling cross-examination the defence could not bring anything on record to impeach credibility of this witness. His evidence does not suffer from any infirmity or any contradiction or omission with reference to the contents of panchnama. Nothing has been brought on record to see his evidence is disbelieved. The evidence of the witness Mr. Bhimjibhai Manilal Marwadi inspire confidence. [Para 5.5]

       The law is well settled that prosecution is not required to multiple evidence. What is relevant is a quality of evidence and not quantity of evidence. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case, be required for the proof of any fact. [Para 5.5-A]

       Though it has been stated that the accused was aged 92 years when the offence was committed and today he is aged about 97 years. However, the accused except recording his statement under Section 313 of CrPC no other evidence has been led by him to prove that he is aged 92 years at the time when the offence was committed. However, even if it is assumed that he is aged 92 years at the time when the offence was committed, in view of the seriousness of the offence which affects the public health and also an economic offence when the accused received the amount, Court is of the view that merely the age of the accused may not play any part in acquitting the accused once it is found that the accused was found in possession of narcotic substance or offending article. [Para 7.7]

       Law Laid Down :

       (i) What is relevant is a quality of evidence and not quantity of evidence.

       (ii) That failure to inform the concerned person about the existence of his right to be searched before the Gazetted Officer or a Magistrate would cause prejudice to accused.

       (iii) Doubts would be reasonable if they are free from a zest for abstruct speculation.

       (iv) Merely the age of the accused may not play any part in acquitting the accused once accused is found in possession of narcotic substance.

       Cases Law Analysis :

       State of Punjab vs. Baldev Singh, AIR 1999 SC 2378 = 1999 (6) SCC 172 [Para 5.2];; Bhupatji Shakaraji vs. State of Gujarat, 2003 (2) GLR 1127 [Para 5.3];; Raghubhai Gandabhai Bharwad vs. State of Gujarat, Criminal Appeal No. 12 of 2002 [Para 5.5-D];; Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 [Para 5.5-D];; State of Madhya Pradesh vs. Dharkole Alias Govind Singh & Ors., AIR 2004 SCW 6241 [Para 5.5-F];; Sucha Singh & Anr. vs. State of Punjab, 2003 (7) SCC 643 [Para 7.4];; State of U.P. vs. Krishna Gopal, 1988 (4) SCC 302 [Para 7.4-C];; State of Punjab vs. Karnail Singh, 2003 (11) SCC 271 [Para 7.5];; Sajan Abraham vs. State of Kerala, 2001 (6) SCC 692 [Para 7.5-A].-Relied on

       Cases Referred :

       Shivaji Sahebrao Bobade vs. State of Maharashtra, AIR 1973 SC 2622;; Joginder Singh vs. State, 1995 CrLJ 124 (HP);; State of U.P. vs. Krishna Gopal, 1989 CrLJ 288 = AIR 1988 SC 2154;; Lal Singh vs. State of Gujarat & Anr., 2001 (3) SCC 221;; Gurbachan Singh vs. Satpal Singh, 1990 (1) SCC 445;; State of U.P. vs. Ashok Kumar Srivastava, 1992 (2) SCC 86;; Inder Singh vs. State (Delhi Admn.), 1978 (4) SCC 161;; Per Viscount Simon in Stirland vs. Director of Public Prosecution, 1944 AC 315;; State of U.P. vs. Anil Singh, 1988 Supp SCC 686 = SCC p. 692;; Gangadhar Behera vs. State of Orissa, 2002 (8) SCC 381;; Ram Narayan Popli vs. C.B.I., 2003 (3) SCC 641;; State of Gujarat vs. Mohanlal Jitamalji Porwal, 1987 (2) SCC 364;; Linder Frank Wolfgang vs. Yogesh D. Shah, Suptd. of Customs, 2001 (2) GLH 127 = 2001 (8) SCC 22.

       Decided in Favour of :

       Respondent-State

       Appeal Dismissed