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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.H.Vora, Sandeep N. Bhatt, JJ.
State of Gujarat - Appellant
Vs.
Ugamsinh Dhanrajsinh - Respondent
R/Criminal Appeal No. 942 of 1994
Decided On : 02-03-2022
Narcotic Drugs Psychotropic Substance Act,1985 - Sections 20, 21, 22, 50(1), 43 - Prohibition Act - Section 66(B) and 65(E) – Criminal Procedure Code, 1973 - Section 209, 313, 378 and 379 - Respondent-accused was passing near Village carrying one bag, at that time Police Personnel on suspicion made his search and found 1 Kilogram and 490 Gram of Charas for selling without having valid pass or permit and thus committed offence - Whether there is non-observance of provisions of NDPS Act or not – Held, On perusal of deposition of PW 9, complainant, no evidence has been adduced to show that respondent-accused was communicated of his such right and thus there is a non- compliance of provisions of Section 50 read with Section 43 of NDPS Act - There also appears to be breach or violation of Section 50 of NDPS Act, because it is a statutory requirement of writing down or conveying information to Superior officer - In case on hand, neither such intimation is sent to Superior officer; nor any entry is made in station diary - Muddamal produced before the Court in the bag which appears to have been stitched with a machine on three sides and thus all procedure seizing of muddamal, sealing of muddamal and sending to FSL were found doubtful and procedure precedent to search was done in utter disregard to mandatory provisions of law and therefore, learned trial Court has rightly extended benefit of doubt to respondent-accused and Court also endorse view/finding of learned trial Judge leading to acquittal - Considering aforesaid facts and circumstances of case and law laid down by Hon'ble Supreme Court while considering scope of appeal under Section 378 of Code of Criminal Procedure, no case is made out to interfere with impugned judgment and order of acquittal - Appeal dismissed.
JUDGMENT/ORDER :
S.H.Vora, J.
1. Feeling aggrieved and dissatisfied with the judgment and order dated 21.6.1994 passed by the learned Addl. Sessions Judge, Gondal in Sessions Case No.70 of 1990 for the offences under Sections 20, 21 and 22 of the NDPS Act and under Section 66(B) and 65(E) of the Prohibition Act, the appellant - State of Gujarat has preferred the captioned appeal inter alia challenging the judgment and order of acquittal in favour of the respondent-accused.
2. The brief facts of the case are that on 08/06/1990 at about 17:00 while the respondent-accused was passing near Juni Haji Dawod Hospital, Pehla Nala on Dhoraji Road to Jetpur Village carrying one bag, at that time the Police Personnel on suspicion made his search and found 1 Kilogram and 490 Gram of Charas for selling without having valid pass or permit and thus committed the aforesaid offence. The complainant lodged the complaint with regard to the incident before Jetpur City Police Station, which was registered as I - C.R. No.59 of 1990 for the aforesaid offences.
3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned Magistrate, Jetpur. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Gondal as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Gondal, learned Sessions Judge framed charge at Exh.1 against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried
5. In order to bring home charge, the prosecution has examined following prosecution witnesses and also produced various documentary evidence before the learned trial Court, which reads thus:
List of Prosecution Witnesses:-
| Sr. No. | Exhibit | Particulars |
| PW-1 | 6 | Mr.Natha Bhanji |
| PW-2 | 8 | Mr.Sanjay Hiralal |
| PW-3 | 9 | Mr.Shahbhai Alibhai. |
| PW-4 | 11 | Mr.Ratilal Maganlal. |
| PW-5 | 12 | Mr.Liladhar Meraman |
| PW-6 | 13 | Mr.Jitesh Dharamsibhai |
| PW-7 | 14 | Mr.Rahimbhai Amibhai |
| PW-8 | 17 | Mr.Ajitsinh Jadeja |
| PW-9 | 18 | Mr.Harisinh Jankat |
List of Documentary Evidence:-
| Sr. No. | Exhibit | Particulars |
| 01 | 16 | Copy of Station Diary Entry made in Jetpur City Police Station. |
| 02 | 19 | Original Complaint |
| 03 | 20 | Order of Depute. |
| 04 | 21 | Copy of Message. |
| 05 | 22 | office Copy |
| 06 | 23 | Copy of letter |
| 07 | 24 & 25 | Copy of reports |
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code.
In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.
7. We have heard learned APP Ms. Shah appearing for the appellant-State and re-examined the record and proceedings conducted before the learned trial Court. The case ended into acquittal mainly on the premise that there was non-compliance of mandatory provisions of the NDPS Act on the part of the Investigating Agency. The learned tri
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