Gujarat High CourtRanjit @ Abdul Shantilal Shankerlal ... vs State Of Gujarat on 16 April, 2018Author:S.G. ShahBench:S.G. ShahR/CR.A/449/2012                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 449 of 2012
                                With
                   R/CRIMINAL APPEAL NO. 197 of 2012
                                 With
                CRIMINAL MISC.APPLICATION NO. 1 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G. SHAH

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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             RANJIT @ ABDUL SHANTILAL SHANKERLAL DARJI
                               Versus
                         STATE OF GUJARAT
==========================================================
Appearance:
MR EE SAIYED(725) for the PETITIONER(s) No. 1
MR CHINTAN DAVE, APP for the RESPONDENT(s) No. 1
==========================================================

    CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
                       Date : 07/05/2018
                   COMMON ORAL JUDGMENT1.     Both these appeals are arising out of same
impugned judgment and order dated 22.2.2012 in
Sessions           Case      No.      (NDPS)        33      of       2010   by
Addl.Sessions Judge of City Sessions Court No.12,Page 1 of 12R/CR.A/449/2012                                               JUDGMENT




Ahmedabad City, wherein both the appellants were
accused     and         convicted        by         such    common      impugned
judgment for the offences punishable underThe
Narcotic Drugs and Psychotropic Substances Act,
1985('NDPS Act', for short). Therefore, both the
appeals are consolidated and heard together and
decided by this common judgment.2.   Heard learned advocate Mr. E.E. Saiyed for
the appellants and learned APP Mr. Chintan Dave
for the respondent - State in both the Criminal
Appeals. Perused the record as well as the R & P
of trial Court.3.   Both the appellants were prosecuted pursuant
to   recovery           of     Charas       from          them.   As    per    the
prosecution         case,       appellant             of    Criminal       Appeal
No.449     of      2012         -    Ranjit           @     Abdul      Shantilal
Shankerlal Darji was having 5.466 Kgs. of Charas
with him; whereas appellant of Criminal Appeal
No.197      of          2012     -     Mehmoodabibi               Valimohammad
Abdulla Shaikh was having 35 Gms. of Charas with
her. It is the case of the prosecution that upon
secret      information              being           received          regarding
trafficking of narcotic drugs at S.T. Bus Stand
of   Ahmedabad,           when       they      reached        the      S.T.    Bus
Stand,     they          caught      and        arrested          appellant     -
Ranjit @ Abdul Shantilal Shankerlal Darji with
5.466 Kgs. of Charas on 12.11.2009, and during
investigation, it was disclosed by said Ranjit
Darji that the appellant Mehmoodabibi Shaikh is
also involved in such business and dealing withPage 2 of 12R/CR.A/449/2012                                            JUDGMENT




narcotic drugs, they arrested her on 16.11.2009
because         35 Gms. of Charas was found from her.
For such possession of narcotic drug from the
appellants, an FIR was registered on 12.11.2009
being 503 of 2009. Appellant - Ranjit Darji is in
custody since then; whereas Mehmoodabibi Shaikh
was released on bail on 4.3.2012, pending her
appeal.4.   Based upon the investigation, chargesheet was
filed and charges underSection 8(c),20(b)and29of      the          NDPS     Act    was        framed       against       the
appellants.               After    trial,           the    appellants          were
convicted          for       the     aforesaid            offences        by    the
impugned judgment and surprisingly, the Sessions
Court has awarded equal punishment to both the
accused       irrespective               of   quantity        of    contraband
material            recovered             from            them,     so         also
irrespective of nature of evidence against each
of them. So far as the operative order awarding
sentence to the appellants are concerned, same is
also surprising, inasmuch as the Sessions Court
has not sentenced the appellant - Mehmoodabibi
Shaikh separately for 35 Gms. Charas found from
her, but convicted her for the Charas found with
main accused - Ranjit Darji, which is huge in
quantity, only on the premise that Ranjit Darji
was going to deliver such Charas to her. Thereby,
the Sessions Court has awarded sentence of 10
years          Rigorous              Imprisonment                  (RI)         and
Rs.1,00,000/- fine to both of them with condition
that if the fine amount is not paid, then, toPage 3 of 12R/CR.A/449/2012                                              JUDGMENT




undergo       further            two    years          simple    imprisonment
(SI). So far as 35 Gms. Charas recovered from
Mehmoodabibi              Shaikh       is    concerned,         the       Sessions
Court      has       recorded          that           instead    of       awarding
separate punishment, the period for which she has
remained         in       jail,        pending          trial,       is        to    be
considered as her punishment. However, in that
case, the Sessions Court has failed to realise
that maximum punishment for such small quantity
was   six      months        at     the       relevant        time      when         the
offence was committed and it was one year at the
time of awarding punishment and therefore, when
she has remained in custody for more than two
years, the order of conviction qua Mehmoodabibi
Shaikh,       is      certainly           illegal        and     needs         to     be
interfered with.5.    However, so far as the appellant Ranjit Darji
is    concerned,            considering               the    huge      quantity,
being more than the commercial quantity, one has
to scrutinize the entire record to verify that
whether his conviction is proper or not. I have
verified the entire record and all the evidence
adduced        before            the     Sessions            Court        so        also
judgment         of       the      Sessions            Court.     Details            of
witnesses and other minute details of procedural
part,     right           from    recording            FIR    till     recording
further statement of the accused during trial, is
properly described in the impugned judgment and
therefore, I do not wish to reproduce same story.
Similarly, details of witnesses and documentary
evidence with exhibit numbers and its outcome isPage 4 of 12R/CR.A/449/2012                                              JUDGMENT




well     described             in     the         impugned         judgment     and
therefore also, its reproduction is avoided. The
overall       scrutiny           of      entire          record,     documentary
evidence        as        well      as     oral         evidence     before     the
Sessions         Court,          certainly               confirms      that     the
accused       Ranjit           Darji       was          having     possession    of
huge quantity of Charas on 12.11.2009 when he was
intercepted at S.T. Bus Stand of Ahmedabad i.e. a
public place from where person can easily travel
to    different           places         and       therefore,         it   becomes
clear       that          appellant               -       Ranjit      Darji     was
transporting huge quantity of Charas, which being
more than 5 Kgs., falls within the category of
Commercial Category. The F.S.L. report confirms
the     quality           of     such          contraband           material     as
narcotic drug and in absence of any evidence in
rebuttal, which is not otherwise possible by the
appellant when he was caught with such contraband
material from public place so as to plead that he
was     not        concerned              with           such      material     and
therefore, there is no scope for his acquittal
for any reason, including legal technicalities.
Therefore, when there is sufficient material on
record to prove that material possessed by the
appellant and recovered from him was contraband
material, discussion of different evidence is not
material         and        to      that          extent,          there   is   no
substance          in      the      appeal              by   the    appellant    -
Criminal Appeal No.449 of 2012 - Ranjit @ Abdul
Shantilal Shankerlal Darji so as to quash and
set-aside            the         impugned                judgment      qua      hisPage 5 of 12R/CR.A/449/2012                                           JUDGMENT




conviction and thereby, to acquit him from the
charges, which are otherwise proved against him.6.    It     is       undisputed            fact     that     evidence        on
record,          clearly          proves           the     possession          of
contraband material from the appellant - Ranjit
Darji and during trial, the investigating agency
has successfully adduced sufficient and relevant
evidence to confirm such possession and appellant
could      not      rebut     the      same.        The    discussion        and
appreciation of evidence by the trial Court is
perfect        and        proper       so    as     to     arrive      at    the
conclusion          to     convict      Ranjit           Darji.    Therefore,
when I endorse such reasoning for conviction, I
do not want to re-discuss the same.7.    Whereas, so far as Criminal Appeal No.197 of
2012 by Mehmoodabibi Valimohammad Abdulla Shaikh
is concerned, as already recorded herein above,
the order against her in impugned judgment needs
to be modified even if it is not quashed and set-
aside.      Therefore,            it    would        be    appropriate        to
record the grounds for the same.8.    Learned             advocate          Mr.      Saiyed         for       the
appellants submits as under:-a)    Only       Ranjit       @     Abdul          Shantilal       Shankerlal
Darji was arrested with huge quantity of Charas;whereas Mehmoodabibi Valimohammad Abdulla Shaikh
was   not      present       and       was     not       arrested     at     that
place.Page 6 of 12R/CR.A/449/2012                                            JUDGMENT




b)    She     was        joined    as      accused         only     upon     the
statement          of      Ranjit        Darji        that         contraband
material is to be delivered to her.

c)    There is no clarity that when Ranjit Darjihas disclosed the name of Mehmoodabibi Shaikh,
but it is admitted position that Mr. Vaghela of
investigating team had came to know about the
movement of Mehmoodabibi Shaikh and therefore, he
arrested her on 16.11.2009 only on the allegation
that she was possessing 35 Gms. of Charas.d)    Search of Mehmoodabibi Shaikh was not carried
out    in      presence           of    Magistrate           or       Gazetted
Officer, but it was carried out only in presence
of woman Constable Puniben and one Panch witness,
which is in clear violation ofSection 50of the
NDPS Act.e)    Whereas,           Panch     witness           Afsana,         who     had
witnessed the search of Mehmoodabibi Shaikh has
turned hostile, stating that she does not know
anything        about       such       search        and    recovery         and
nothing was recovered in her presence, but police
has taken her signatures on 10 papers and nobody
was present at that time in the police station
(PW-3 at Exh.47).f)    Information           gathered              during    investigation
about Mehmoodabibi Shaikh was never reduced in
writing nor sent to superior officer, which is
mandatory         as      per     statute           and     no      order     ofPage 7 of 12R/CR.A/449/2012                                            JUDGMENT




investigation was passed by competent authority
or assigned the investigation against appellant
to     some       investigating               officer       and      similarly,
there is no order to transfer the investigation
from        one      investigating                    officer     to    another
investigating officer.g)     So     far         as    identification             of     Mehmoodabibi
Shaikh      is      concerned,           it      was     done   only     by    co-
accused Ranjit Darji, that too when he was in
lock-up. However, there was no such endorsement
in   lock-up          register          that          whether   he     was    ever
taken away from lock-up and if taken away for
such     inquiry,              then,      neither         his     arrival      or
departure time is maintained in lock-up register.h)     The witness who has searched the appellant -
Mehmoodabibi              Shaikh       was        not     aware      about    the
precaution and prevention to be taken care of
before       search            and   that      such      search      cannot     be
after sunset and before sunrise.i)     Surprisingly, by Exh.52, which is handwritten
by the investigating officer and which does not
have signature of the accused, the investigating
officer       has         disclosed        that        personal      search    of
Mehmoodabibi is continued after sunset and such
information is by such document, alleged to have
been conveyed to the mother of the appellant -
Mehmoodabibi, which is not permissible in law. It
is evident from record that Mehmoodabibi Shaikh
is illiterate and has put her thumb impression,Page 8 of 12R/CR.A/449/2012                                            JUDGMENT




which is evident from Exh.51. However, at Exh.52
instead         of        taking      her           signature        or       thumb
impression,           signatures           of       some       unknown    persons
were taken.j)     It is also evident that there is no entry of
such     information             either             in    police     diary       or
station       diary         or     there        is       no    endorsement      of
superior officer.k)     It is certain from record that though name of
Mehmoodabibi was disclosed by appellant - Ranjit
Darji stating that Charas is to be delivered to
Mehmoodabibi,              there       is       no        disclosure          about
residence of Mehmoodabibi or where such Charas
was to be delivered and therefore, when appellant- Ranjit Darji was silent from 12.11.2009 till
15.11.2009           and    only      on     15.11.2009            when    it    is
recorded in the statement of accused - Ranjit
Darji      that           Charas     was        to        be     delivered      to
Mehmoodabibi, there is reason to believe that it
is an afterthought.l)     So far as the allegation regarding recovery
of 35 Gms. Charas from Mehmoodabibi is concerned,
PW-7 i.e. Amir Mehboobbhai has deposed before the
court that nothing was found from anyone in his
presence and he had endorsed the certificate as
per the direction of police and that certificate
was written by police only.9.     Learned advocate Mr. E.E. Saiyed is relyingPage 9 of 12R/CR.A/449/2012                                             JUDGMENT




upon    the       recent        judgment             dated    11.12.2017         of
Hon'ble Supreme Court of India in Criminal Appeal
No. 2151 of 2017 betweenPradeep Bachhar Vs. The
State     of      Chhattisgarhwherein           relying      upon    a
reported case ofShahejedkhan Mahebubkhan Pathan
Vs. State of Gujaratreported in (2013)1 SCC 570
it is held that sentence of 10 years for non-
payment of fine his harsh and therefore, Hon'ble
Supreme       Court       of     India       has       reduced       it   to    six
months.10. In view of above facts and circumstances, it
becomes clear that conviction of the appellant -
Mehmoodabibi Shaikh is unwarranted. However, it
is to be considered that she has been convicted
for abetment of main accused - Ranjit Darji based
upon the statement of Ranjit Darji only, but when
35 Gms. Charas was found from her, when there is
no    cogent        and    reliable            evidence        against         her,
though she may be acquitted from all the charges,
the     reading           of     overall             evidence       on     record
confirms         that      barring          few       irregularities,            if
there is evidence to confirm that apellant is
involved        herself         in    dealing          of     the    contraband
material, then also, she could be punished for
having possession of 35 Gms. Charas i.e. small
quantity of contraband material.11. Considering                the   above           aspect    and     the     fact
that permissible sentence for small quantity was
six months with fine of Rs.10,000/- on the date
of commission of offence, which was modified inPage 10 of 12R/CR.A/449/2012                                            JUDGMENT




the year 2014 and extended to one year. In any
case, sentence to Mehmoodabibi cannot be beyond
six months because the impugned judgment is of
the year 2012. It is also evident that appellant
remained in jail from 16.11.2009 till 4.3.2012
i.e. for more than 2 years.12. Therefore, when there is violation ofSection
50of the Act, Panch witness has turned hostile,
absence         of        independent           witness,        absence          of
relationship              between      both         the    appellants,          the
order     of      sentencing           Mehmoodabibi           needs        to   be
quashed and set-aside by modifying the conviction
for small quantity of 35 Gms. Charas only and
modifying the sentence from 10 years R.I. to six
months and fine of Rs.10,000/- and on non-payment
of such fine amount, to undergo six months S.I.13. Thereby,               the   fact        remains         that       in      all
appellant - Mehmoodabibi has to undergo sentence
of eight months only; whereas, she has already
undergone imprisonment for more than 24 months
and thereby, now, she does not have to undergo
any imprisonment.14. In      view          of   above     facts,           circumstances         and
discussion,               Criminal      Appeal            No.197      of      2012
preferred         by       Mehmoodabibi             Valimohammad        Abdulla
Shaikh is partly allowed, whereby conviction for
abetting - Ranjit @ Abdul Shantilal Shankerlal
Darji        is           quashed      and          set-aside;          whereby
conviction and sentence for huge quantity is alsoPage 11 of 12R/CR.A/449/2012                                             JUDGMENT




quashed and set-aside. Whereas, when the trial
Court has not sentenced her for the possession of
35 Gms. of Charas and she is convicted for 35
Gms. Charas, she has to undergo sentence for six
months      S.I.          with    fine        of       Rs.10,000/-        and    two
months S.I. for non-payment of fine. Therefore,
now,     she        does         not     have          to    undergo       further
imprisonment.15. Whereas, Criminal Appeal No.449 of 2012 by
Ranjit      @     Abdul          Shantilal             Shankerlal       Darji     is
partly allowed only to the extent of reducing the
period of simple imprisonment for non-payment of
fine from two years to six months by confirming
his     conviction                and        sentence            except        above
modification.16. R      &    P     be    returned            back        to   the    concerned
Sessions Court.(S.G. SHAH, J)
binoyPage 12 of 12