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RECEIVED ON : 16th August 2012

REGISTERED ON : 16th August 2012
DECIDED ON : 30th August, 2017
DURATION : 05 00 14
YEARS MONTH DAYS
IN THE COURT OF SPECIAL JUDGE (NDPS) AT VADODARA
SPECIAL (NDPS) CASE NO.7 OF 2012

EXH.: 51
COMPLAINANT:
THE STATE OF GUJARAT
VERSUS
ACCUSED:
HARI @ HARIYA MOHAN KAHAR
AGE: 55 YEARS, OCCUPATION: LABORER
R/O.GANESHNAGAR, OPP. PARSI BHISTA COMPOUND,
VISHWAMITRI RIVER'S BANK, VADODARA.
APPEARANCES:
SHRI MR DARJI – LEARNED IN-CHARGE DGP FOR COMPLAINANT
SHRI MH SHAIKH – LD.ADVOCATE FOR THE ACCUSED
CASES RELIED UPON:

1. LAWS(SC) 2014 2 71 [STATE OF MAHARASHTRA VS. PARMANANDA]
2. 2008(1) CRIMES 119 (SC) [DIRECTORATE OF REVENUE & ANR. VS. MOHAMMED NISAR
HOLIA]
3. LAWS(SC) 2011 5 54 [NARCOTICS CENTRAL BUREAU VS. SUKH DEV RAJ SODHI]
4. 2010 (1) EFR 442 [STATE OF RAJASTHAN VS. BABU LAL]
5. 2008 (2) EFR 707 [NOOR AGA VS. STATE OF PUNJAB AND ANOTHER]
6. 2000 (10) SCC 257 [ISMAILKHAN AIYUBKHAN PATHAN & OTHER VS. STATE OF GUJARAT]
7. AIR 1999 SC 2378 [STTATE OF PUNJAB VS. BALDEV SINGH]
TRIAL OF THE OFFENCES

UNDER SECTION 20(B) R/W. SECTION 29 OF THE NDPS ACT, 1985
Spl. (NDPS) Case No.7 of 2012 (Judgment)

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:: JUDGMENT ::
1. THE accused namely Hari @ Hariya Mohan Kahar, Age – 55 years,
resident of Ganeshnagar, Opp. Parsi Bhista Compund, Vishwamitri
River's Bank, Vadodara has been booked for the offences punishable
under Section 20(b) R/w. Section 29 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS
Act" for the sake of brevity).
2. Facts of the prosecution case in nutshell:
i. It is the case of the prosecution that the complainant – un-

armed Head Constable Firojkhan Nabikhan Pathan of Special
Operation Group (in short "SOG") had on 17/06/2012 given a
complaint to the Manjalpur Police Station stating that ASI –
Subhash Raghunath of SOG Vadodara has received secret
information from the informer that the accused – Hari @
Hariya Mohan Kahar resident of Ganeshnagar on the bank of
river Vishwamitri is doing business of selling Ganja at his
home. The said secret information was conveyed to SOG,
Vadodara which was registered in the Secret Information
Register vide Sr. No.1/12 at about 10:15 in the morning, copy
of which was sent to the Deputy Commissioner of Police,
Crime Branch, Vadodara in a sealed cover through Police
Constable – Arjunbhai Chimanbhai.
ii. According to the prosecution the complainant had then stated

that thereafter Police Constable – Hemant Tukaram was sent to
call upon two panchas. On arrival of panchas viz. (1) Mayur
Vasantbhai Pandit and (2) Gurumukh Kanaiyalal Khatri they
were made acquainted about the secret information and Police
Constable – Sardar Ranchhodbhai was directed to prepare
Investigation Kit. Police Constable – Sardar Ranchhodbhai had
prepared the Investigation Kit and arrived there with driver

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Police Constable – Laxmansinh Udesinh. After preparing

preliminary panchnama, police squad along with two panchas
proceeded for the raid.
iii. According to the prosecution, the entire squad had reached to

the place of information where one person was found in the
house. On being asked in presence of panchas, he had told his
name as Hari @ Hariya Mohan Kahar. After making him
acquainted with the squad and panchas, resolution under
Sections 42 and 50 of the NDPS Act were prepared. Thereafter
he was persuaded about his right to keep present any other
Gazetted Officer or Magistrate during search, to which he had
denied and permitted the Police Inspector Mr.RR Chaudhary to
carry out search, and thereafter his signature was obtained on
the resolutions. On being searched by PI Mr.Chaudhary six
small packets wrapped in bits of Gujarati and English News
Paper were found from the right pocket of his pant. All those
small packets were opened in presence of panchas in which
vegetal substance of light green color which was little dry and
little damp found in all six small packets, which was prima
facie identified as Cannabis (Ganja). The accused was asked to
produce permit for keeping the said substance, but he was not
having the same, and therefore FSL Investigation Mobile was
called on the spot. During personal search of the accused
Rs.4,570/- in currency notes of different denominations were
found from the pocket of his shirt. During the search of the
house one plastic bag having logo of 'Bata Shoes' was found
hidden below the bags of potatoes, grains etc. from which the
substance similar to the substance found from the small packets
was found, which was prima facie identified as Cannabis
(Ganja). During this search, Scientific Officer Mr.SN Archarya
had arrived there along with FSL Investigation Mobile. During
primary analysis by the Scientific Officer the said substance

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was identified as Cannabis (Ganja). Thereafter the substance

found from personal search and search of the house were
weighed which were found to be net weight of 523.45 grams
valued to Rs.3,600/-. Out of the said recovered substance, two
samples each of 25 grams were separated for FSL and Reserve
Sample. Thereafter the Cannabis recovered as muddamal, FSL
Sample and Reserve Sample were packed in zipped bag and
after putting them into three different cloth bags, the said cloth
bags were stitched with the help of needle and thread and their
mouths were sealed with sealing wax and seal of 'PSI-SOG-
Vadodara' was affixed and panch slips were tied thereon.
Muddamal parcel was marked as "A", FSL Sample was marked
as "A-1" and the Reserve Sample was marked as "A-2".
iv. The complainant has further stated that on being interrogated

about from whom he has obtained this Cannabis, he had told
that he has obtained Cannabis from one person named Kaliya
residing in Zupadpatti near Railway Line, Ashwinikumar Road,
Surat.
v. The prosecution has therefore stated that the aforesaid act of the
accused is punishable under Section 20(b) R/w. Section 29 of
the NDPS Act, 1985.
vi. It is the case of the prosecution that the complaint was filed by
the complainant namely Firojkhan Nabikhan – un-armed Head
Constable of SOG with the Manjalpur Police Station which was
registered vide II CR No.63/12. Exh.18 is the complaint given
by the complainant which is dated 17/06/2012.
3. On completion of the investigation, the Charge Sheet was filed against

the accused. The offences being in the nature of being tried by the
Special Court, charge was framed against the accused on 16/04/2013
vide Exh.4 for the offences punishable under Section 20(b) R/w.

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Section 29 of the NDPS Act, 1985. The said charge was read over to
the accused and he did not plead guilty vide Exh.5.
4. The prosecution has thereafter led the evidence. The rojnama reveals
that the prosecution has closed the evidence on 31/03/2016 by an oral
submission. The Statement under Section 313 of the Code of Criminal
Procedure, 1973 dated 19/07/2016 of the accused was recorded,
wherein, he has denied the charges leveled against him. He has also
stated that he is an innocent person and has been falsely implicated in
this case.
(A) Prosecution Witnesses – The prosecution in order to bring home

the offences has examined following witnesses:
Exh.7 - PW-1 : Mayurbhai Vasantbhai Pandit – Panch

Witness
Exh.14 - PW-2 : Gurumukh Kanaiyalal Khatri – Panch

Witness
Exh.17 - PW-3 : Firozkhan Nabikhan Pathan – Complainant
Exh.21 - PW-4 : Saurabh Mahendrarai Acharya – Scientific

Officer, FSL
Exh.26 - PW-5 : Dilipkumar Suryabhan Jadav – PSO
Exh.29 : PW-6 : Ratilalbhai Aapsingbhai Rathwa – Police

Constable
Exh.32 - PW-7 : Bhalubhai Amarsingbhai Rathwa – Head

Constable
Exh.36 - PW-8 : Janmohammad Fakirbhai Mansuri –

Assistant Director, FSL
Exh.38 - PW-9 : Raghuvir Shamjibhai Dabhi – Police

Inspector
Exh.42 - PW-10 : Rajeshbhai Revabhai Chaudhary – Police

Inspector

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(B) Documentary Evidence:
Exh.8 - Panchnama
Exh.9 - Resolution under Sections 42 and 50 of NDPS Act
Exh.10 - Persuading Letter
Exh.11 - Seizure Memo
Exh.12 - Arrest Memo
Exh.18 - Complaint
Exh.22 - Yadi for FSL (Inv.)
Exh.23 - FSL (Inv.) Report
Exh.28 - Yadi for handing over investigation
Exh.30 - Yadi to send the muddamal to FSL
Exh.31 - FSL Receipt
Exh.37 - FSL Report
Exh.43 - Letter informing about secret information
Exh.44 - Extract of Secret Information Register
5. Heard learned In-Charge DGP Shri MR Darji for the complainant and
Ld.Advocate Shri MH Shaikh for the accused.
6. Upon giving careful consideration upon rival contentions, oral as well

as documentary evidences on record and the charge framed, the
following points arise for my determination:
:: POINTS FOR DETERMINATION ::
(1) Whether the prosecution proves beyond reasonable doubt that

the accused Hari @ Hariya Mohan Kahar on 17/06/2012 was
possessing cannabis plant for the purpose of selling in
connivance with the absconding accused Kaliya without any
permit or licence, and has thereby committed the offences
punishable under Sections 20(b) R/w. Section 29 of the NDPS

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Act, 1985?
(2) What order?
My answers to the above points are as under:
(1) In Negative.
(2) As per final order.
7. Shri MR Darji's submissions on behalf of the State:
i. Learned In-Charge DGP Shri Darji has vehemently submitted

that on 17/06/2012, ASI Subhash Raghunath of SOG, Vadodara
had received information, based upon which the raid was
carried out and Ganja to the tune of 423.45 grams was seized
from the house and person of the accused and cash to the tune
of Rs.4,570/- were recovered from the accused. He has further
submitted that in pursuance thereto offence under Section 20(b)
R/w. Section 29 of the NDPS Act, 1985 was booked against the
accused. He has further argued that the Charge has been framed
on 16/04/2013 at Exh.4 against the accused.
ii. He has further argued that in order to prove its case, the
prosecution has in all examined 10 witnesses, out of which PW-
1 and PW-2 are the panch witnesses. He has submitted that
though these panch witnesses have turned hostile, they have
identified their signatures on the panchnama and have also
spoken about resolutions. Thus, he has submitted that though
these panch witnesses have turned hostile, their depositions to
the extent of drawing of panchnama and passing of resolution
have to be looked into.
iii. He has then submitted that the muddamal which was seized
was sealed. He has then referred to deposition of complainant
at Exh.17 and has submitted that he is the complainant who has
given the complaint at Exh.18. He has further submitted that

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accused no.2 is absconding.
iv. He has further argued that the officer from the FSL who has
been examined vide Exh.21 has deposed in respect of presence
of panchas. He has then drawn the attention of this Court to the
FSL Report at Exh.23 and the deposition of another officer of
the FSL Dr.Jan Mohammad Mansuri who is examined as PW-8.
v. He has also referred to the deposition of PW-5 – the PSO at

Exh.29 and deposition of PW-7 – Crime Writer. He has after
referring to deposition of PW-10 submitted that there is due
compliance of Sections 42 and 50 of the NDPS Act and has
submitted that the muddamal was collected from the house and
person of the accused. He has also argued that as per report at
Exh.37, presence of Ganja is proved. He has therefore argued
that in the instant case, the prosecution has proved the offences
against the accused beyond reasonable doubt, and therefore, the
accused be held guilty for the offences for which he is booked
for.
8. Shri MH Shaikh's submissions on behalf of the accused:
i. Shri MH Shaikh has at the outset submitted that it is a cardinal

principle of criminal jurisprudence that the prosecution has to
prove its case beyond reasonable doubt. He has thereafter
referred to Sections 29 and 20(b) of the NDPS Act and has
submitted that the other accused has not been arrested or traced
out during the investigation. He has further argued that the
quantity which was seized was a small quantity and therefore it
does not fall within Section 20(b) (i) but falls under Section
20(b)(ii)(A) of the NDPS Act. According to him, after the
amendment in 2002, punishment was settled on the basis of the
quantity seized from the accused. In 2014, punishment was
increased from six months to 1 year. He has argued that on the

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date of the alleged offence, the amendment was not in force and
therefore the punishment was only up to six months and ten
thousand rupees fine.
ii. He has thereafter drawn the attention of this Court to Section

42(1) and 42(2) of the NDPS Act and has submitted that
provisions contained in both these sections are mandatory in
nature. He has also argued that the person who has received the
information shall have to put it down in writing. He has also
submitted that as per prosecution case, ASI Subhashbhai had
received information for the first time who is the material
witness for compliance of Section 42(1) of the NDPS Act, who
has not been examined in this case by the prosecution. Thus,
Shri Shaikh has argued that adverse inference is required to be
drawn.
iii. Shri Shaikh has further argued that the information was not
reduced in writing and that can be seen from the cross
examination para 9 of PW-3 at Exh.17, and thus, there is clear
cut breach of Section 42(1) of the NDPS Act. He has relied
upon the judgment of Director of Revenue & Anr. Vs.
Mohammad Nisar Holia reported in 2008 (1) Crimes 119.
iv. Shri Shaikh has then argued that cannabis is recovered from the
house and person of the accused, and therefore, Section 42 is
applicable in this case. He has then drawn the attention of this
Court to deposition of PW-9 – IO – Raghuvir Shamjibhai
Dabhi [Exh.38] who was PI of Manjalpur Police Station. He
has drawn the attention of this Court to para-2 and has
submitted that he has not seen any information written by RR
Chaudhary. Thus, according to Shri Shaikh, even Section 42(2)
is not complied with. He has further submitted that ASI
Subhash is subordinate to PI RR Chaudhary. He has referred to
the judgment of State of Rajasthan Vs. Babulal reported in

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2010(1) EFR 442. He has thus submitted that mandatory

provisions are not complied with and has argued that mere say
is not sufficient, and therefore, according to him on this count
alone the accused is required to be acquitted.
v. Shri Shaikh has then submitted that Section 50 is mandatory

provision in NDPS Act. Shri Shaikh has argued that there is
complete breach of these provisions in this case and that there
is no evidence produced to show compliance of these
mandatory provisions. He has then submitted that the document
at Exh.44 is required to be read. According to him, from this
document it does not reveal that provisions of Section 42 are
complied with, and therefore benefit of doubt is required to be
given to the accused.
vi. Shri Shaikh has then drawn the attention of this Court to
deposition of PW-1 and PW-2 and has argued that these
panchas have not supported prosecution case and thereafter was
harping on the point that in case where witnesses turn hostile
then that evidence of the witness which supports the accused
has to be accepted.
vii. He has then drawn the attention of this Court to deposition of

PW-3 and after referring page no.3 of the deposition, has
submitted that right of the accused for search carried out before
the Magistrate is not exercised properly in this case, and
therefore, there is total breach of Section 50 of the Act. He has
further submitted that mere say is not sufficient as the officer is
duty bound to take the accused to nearest Magistrate. He has
relied upon the judgment of Hon'ble Supreme Court reported in
2011 Cr.LJ 4231 and has submitted that the Hon'ble Supreme
Court has held that duty is casted upon the prosecution to bring
the accused to nearest officer.

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viii. He has then drawn the attention of this Court to para-14 of

deposition of PW-3 and has submitted that there is clear cut
version of this witness to the extent that no efforts were made
as to take the accused before some other officer. He has also
relied upon the judgment of the Hon'ble Supreme Court
reported in 2014 Cr.LJ 1756 (Head Note – C) and has
submitted that it has been held by the Hon'ble Supreme Court
that if three options are given then such options are not in
compliance with Section 50 of the Act. He has also submitted
that in the instant case, personal search has been carried out and
there is non-compliance of Section 50.
ix. Shri Shaikh has drawn the attention of this Court to para 8 and
9 of deposition of PW-3 and has then submitted that there is no
compliance of Section 42 of the Act. He has further referred to
para 10 of his deposition and has submitted that if this version
is seen then it is clearly hit by Sections 25 and 26 of the
Evidence Act as there is no evidence about selling activities by
the accused. He has then referred to para 11 of the deposition
and then submitted that for non-compliance of Section 42,
Section 42(1) and (2) should be read together.
x. He has further referred to para 16 of deposition of PW-3 and

has submitted that muddamal was damp and therefore it could
not be weighed. He has also argued that after the said
muddamal got dry the prosecution has not tried to weigh it. He
has also argued that as far as muddamal articles are concerned,
tampering with the said muddamal cannot be ruled out. He has
argued that sealing procedure has been issued by the Central
Government. He has then referred to the judgment of Noor Aga
V/s. State of Punjab & Anr. reported in 2008(2) EFR 707
delivered by the Hon'ble Supreme Court in respect of sealing of
muddamal articles. He has thus submitted that the prosecution
has miserably failed to rule out the possibility of tampering

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with muddamal articles and has further argued that whole case
has been concocted against the accused.
xi. Shri Shaikh has then referred to para-4 on page no.2 of

deposition of PW-4 and has submitted that this witness is not
defining and giving name of muddamal articles. He is an expert
FSL officer. He has then drawn the attention of this Court to
Exh.23 which is his report and has submitted that in the report
at Exh.23 this witness has not stated that it is a 'female plant'.
xii. He has then drawn the attention of this Court to deposition of

PW-5 – PSO and has submitted that muddamal has not been
handed over to nearest police station and there is no evidence to
that effect.
xiii. He has then drawn the attention of this Court to deposition of

PW-6 and has submitted that muddamal has not remained in
safe custody. He has also argued that number of seals have
changed in this case. He has then drawn the attention of this
Court to deposition of PW-8 and has submitted that there is one
seal as per version of this deponent. He has further referred to
deposition of PW-7 – Crime Writer and has submitted that this
witness speaks about one seal, whereas PW-8 in para-4 and 5
speaks about three seals. Thus, according to him seals have
changed and therefore possibility of tampering with seals
cannot be ruled out. He has referred to cross examination of
PW-7 and 8 read with deposition of PW-3 and then submitted
that Section 2(23) which speaks about definition of "ganja" is
not satisfied in this case. According to him, The prosecution in
the instant case has not proved that muddamal that has been
seized from the accused is ganja.
xiv. He has also referred to deposition of PW-8, more particularly

para-11 to 14 and has then submitted that if damp muddamal

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article which was seized remain with FSL for one month, its
weight absolutely decreases. He has then referred to para-3 of
deposition of PW-9 and has submitted that the IO does not
come in link evidence. He has then argued that the prosecution
has also miserably failed to prove that the ownership of house
is that of accused. He has then vehemently argued that the
prosecution has miserably failed to prove the charges leveled
against the accused beyond reasonable doubt and that no
question arise as to presumption under Section 35 and 54 of the
NDPS Act. Under the circumstances Shri Shaikh has argued
that the accused may kindly be acquitted by giving him benefit
of doubt.
:: REASONS ::
9. A. Point No.(1):
i. Before moving to the merits of the case, it would be worth to

go through the provisions streaming through Sections 20, 29,
35, 42, 50, 52 and 54 of the NDPS Act, 1985 which flow as
under-
SECTION 2 : Definitions
In this Act, unless the context otherwise requires,
(iii) "cannabis (hemp)" means
(a) charas, that is, separated resin, in whatever form, whether

crude or purified; obtained from the cannabis plant and also
includes concentrated preparation and resin known as hashish
oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis
plant (excluding the seeds and leaves when not accompanied by
the tops), by whatever name they may be known or designated;
and
(c) any mixture, with or without any natural material, of any of

the above forms of cannabis or any drink prepared therefrom;

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(iv) "cannabis plant" means any plant of the genus cannabis;
(xxiii) "psychotropic substance" means any substance, natural

or synthetic, or any natural material or any salt or preparation
of such substance or materials included in the list of
psychotropic substances specified in the Schedule;
(xxiii-a) "small quantity", in relation to narcotic drugs and

psychotropic substances, means any quantity lesser than the
quantity specified by the Central Government by notification in
the Official Gazette.
SECTION 20: Punishment for contravention in relation to

cannabis plant and cannabis
Whoever, in contravention of any provision of this Act or any

rule or order made or condition of licence granted there under.-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases,

transports, imports inter-State, exports inter-State or uses
cannabis, shall be punishable-
(i) where such contravention relates to Clause (a) with rigorous

imprisonment for a term which may extend to ten years, and
shall also be liable to fine which may extend to one lakh
rupees;
(ii) where such contravention relates to sub-clause (b),-
(A) and involves small quantity, with rigorous imprisonment for

a term which may extend to "one year" or with fine which may
extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but

greater than small quantity, with rigorous imprisonment for a
term which may extend to ten years, and with fine which may
extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous

imprisonment for a term which shall not be less than ten years
but which may extend to twenty years and shall also be liable to
fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees :
Provided that the Court may, for reasons to be recorded in the

judgment impose a fine exceeding two lakh rupees.

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SECTION 29: Punishment for abetment and criminal

conspiracy
(1) Whoever abets or is a party to a criminal conspiracy to

commit an offence punishable under this Chapter, shall,
whether such offence be or be not committed in consequence of
such abetment or in pursuance of such criminal conspiracy,
and notwithstanding anything contained in Section 116 of the
Indian Penal Code (45 of 1860), be punishable with the
punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to

commit an offence, within the meaning of this section, who, in
India, abets or is a party to the criminal conspiracy to the
commission of any act in a place within and beyond India
which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to

narcotic drugs or psychotropic substances having all the legal
conditions required to constitute it such an offence the same as
or analogous to the legal conditions required to constitute it an
offence punishable under this Chapter, if committed within
India.
SECTION 35: Presumption of culpable mental state
(1) In any prosecution for an offence under this Act which

requires a culpable mental state of the accused, the Court shall
presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in
that prosecution.
Explanation.-In this section "culpable mental state" includes

intention, motive, knowledge of a fact and belief in or reason to
believe a fact.
(2) For the purpose of this section, a fact is said to be proved

only when the Court believes it to exist beyond a reasonable
doubt and not merely when its existence is established by a
preponderance of probability.
SECTION 42: Power of entry, search, seizure and arrest

without warrant or authorization
(1) Any such officer (being an officer superior in rank to a

peon, sepoy or constable) of the departments of central excise,

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narcotics, customs, revenue, intelligence or any other

department of the Central Government including para-military
forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any
such officer (being an officer superior in rank to a person,
sepoy or constable) of the revenue, drugs control, excise, police
or any other department of a State Government as is
empowered in this behalf by general or special order of the
State Government, if he has reason to believe from personal
knowledge or information given by any person and taken down
in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable
under this Act has been committed or any document or other
article which may furnish evidence of the commission of such
offence or any illegally acquired property or any document or
other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or
freezing or forfeiture under Chapter V-A of this Act is kept or
concealed in any building, conveyance or enclosed place, may
between sunrise and sunset,-
(a) enter into and search any such building, conveyance or

place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter V-A of
this Act; and
(d) detain and search, and if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under this Act:
Provided that if such officer has reason to believe that a search

warrant or authorization cannot be obtained without affording
opportunity for the concealment of evidence or facility for the
escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and
sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing

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under sub-section (1) or records grounds for his belief under

the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.
SECTION 50: Conditions under which search of persons

shall be conducted
(1) When any officer duly authorized under Section 42 is about

to search any person under the provisions of Section 41 ,
Section 42 or Section 43 , he shall if such person so requires,
take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in
Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the

person until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any

such person is brought shall, if he sees no reasonable ground
for search, forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by any one excepting a female.
(5) When an officer duly authorised under Section 42 has

reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of
taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
Section 100 of the Code of Criminal Procedure, 1973 (2 of
1974).
(6) After a search is conducted under sub-section (5), the

officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours send a
copy thereof to his immediate official superior.
SECTION 53: Power to invest officers of certain

departments with powers of an officer-in-charge of a police
station
(1) The Central Government, after consultation with the State

Government, may, by notification published in the Official
Gazette, invest any officer of the department of Central Excise,
narcotics, customs, revenue, intelligence [or any other

Page : 18
department of the Central Government including para-military

forces or armed forces] or any class of such officers with the
powers of an officer-in-charge of a police station for the
investigation of the offences under this Act.
(2) The State Government may, by notification published in the

Official Gazette, invest any officer of the department of drugs
control, revenue or excise [or any other department] or any
class of such officers with the powers of an officer-in-charge of
a police station for the Investigation of offences under this Act.
ii. In light of aforesaid legal provisions, I shall now proceed with

the merits of this case.
iii. In order to sail across, the prosecution has in all examined 10

witnesses. The first in turn was PW1 – Mayurbhai
Vasantbhai Pandit who has been examined at Exh.7. This
witness has mainly deposed in his Examination-In-Chief that
on 17/06/2012 he was called in SOG Police Station, Karelibaug
and his signature was obtained in a panchnama which was
already written. He has also deposed that his signatures were
also obtained on certain blank papers. He has deposed that
there was another panch named Gurumukh and he too had
signed on the panchnama. He has not identified the accused. He
has not identified muddamal articles no.1, 2 and 3 shown to
him and has deposed that the said muddamal were not seized in
his presence and that he has not seen those muddamal. As
regards muddamal article no.4 he has deposed that he does not
know anything about said muddamal and he has not identified
it. He has even not identified bits of daily news paper. Thus,
this witness has turned hostile and he was declared so.
Thereafter, the prosecution has cross examined this witness.
However, in his cross examination also, he has not supported
the prosecution case.
iv. In his cross examination by the defence, he has admitted that on

17/06/2012 he was not called by SOG. He has also admitted

Page : 19
that on 18/06/2012, the police had in the morning on the written

panchnama obtained his signature. He has spoken in the cross
examination that save that he is unaware of anything about raid
or seizure of muddamal articles. He has admitted that the police
had obtained his signature on the paper cuttings and blank
papers and does not know as to what had the police done about
those blank papers and paper cuttings.
v. The prosecution has then examined PW-2 – Gurumukh

Kanaiyalal Khatri at Exh.14. This witness is also a panch
witness. This witness has reiterated the facts which PW-1 has
stated in his deposition. This witness too has not supported
prosecution case, and resultantly, he was declared as hostile by
the prosecution. Even in his cross examination by the
prosecution, this witness has not supported prosecution case.
This witness too has stated that muddamal articles no.1, 2 and 3
were not seized in his presence and he had not seen them. He
too has not identified the accused in the court. As regards
muddamal articles no.4 and 5, this witness has also shown his
ignorance about the same and has denied its seizure and
collection in his presence.
vi. In his cross examination by defence, this witness has admitted

that on 17/06/2012 SOG police had not called him and on
18/06/2012 in the morning the police had obtained his signature
on the written papers. Save that he has shown his ignorance
about raid and seizure of muddamal. He too has not identified
the accused. He has further deposed that he is doing the
business of selling belts and starts the same between 10:00 am
to 10:30 am. He has further deposed that walking distance from
Sursagar Lake to SOG, Karelibaug is of 10 minutes. He has
then deposed that he was called at about 11:00 in the morning
and it took half an hour to sign papers in the SOG office and
after signing papers, he had left the SOG office in order to go to

Page : 20
his business place. He has also deposed that it had not

happened that he was shown the house where the raid had been
carried out.
vii. Seen thus, two material witnesses in the nature of panchas,

have not supported the prosecution case. No doubt, they have
identified their signatures on the panchnama and panch slips,
but for the seizure of muddamal articles no.1 to 5, both these
witnesses have shown their ignorance and have specifically
stated that the police has not seized the muddamal in their
presence. It is also to be noted that both these witnesses have
even not identified the accused. Thus, they have shown their
total ignorance as regarding drawing of panchnama.
Submissions of Shri Shaikh to the extent that in the facts and
circumstances of the case where both the panch witnesses have
not supported prosecution case, it cannot be said that the
panchnama at Exh.8 and seizure panchnama at Exh.11 are
proved in accordance with law, cannot be discarded in toto. It is
pertinent to note that Exh.8 – Panchnama does not bear
signatures of both these witnesses on each and every page.
Thus, submissions of Shri Shaikh to the the extent that versions
of these witnesses to the extent that their signatures were
obtained on written panchnama and blank papers does bear
some substance. Seen thus, the material panch witnesses have
not supported the prosecution case.
viii. The prosecution has then examined PW-3 – Firozkhan

Nabikhan Pathan at Exh.17. He was the member of raiding
party and is the complainant in this case. He has mainly
deposed in his Examination-In-Chief that ASI – Subhash
Raghunath of SOG Vadodara had received secret information
from the informer that the accused – Hari @ Hariya Mohan
Kahar resident of Ganeshnagar on the bank of river
Vishwamitri is doing business of selling Cannabis at his home.

Page : 21
He has further deposed that the said secret information was

conveyed to PS – SOG, Vadodara which was registered in the
Secret Information Register vide Sr. No.1/12 at about 10:15 in
the morning, copy of which was sent to the Deputy
Commissioner of Police, Crime Branch, Vadodara in a sealed
cover through Police Constable – Arjunbhai Chimanbhai.
ix. This witness has further deposed that thereafter Police

Constable – Hemant Tukaram was directed to call upon two
panchas, and accordingly, on arrival of panchas viz. (1) Mayur
Vasantbhai Pandit and (2) Gurumukh Kanaiyalal Khatri they
were made acquainted about the secret information and Police
Constable – Sardar Ranchhodbhai was directed to prepare
Investigation Kit. He has further deposed that Police Constable
– Sardar Ranchhodbhai had prepared the Investigation Kit and
arrived there with driver Police Constable – Laxmansinh
Udesinh and after preparing preliminary panchnama between
10:50 to 11:20 am in the office of PI, SOG, police squad along
with two panchas proceeded for the raid.
x. He has further deposed that the entire squad had reached to the
place of information where one person was found in the house
and on being asked in presence of panchas, he had told his
name as Hari @ Hariya Mohan Kahar. It is further deposed that
after making the accused acquainted with the squad and
panchas, resolution under Sections 42 and 50 of the NDPS Act
were prepared. He has further deposed that thereafter the
accused was persuaded about his right to keep present any other
Gazetted Officer or Magistrate during search, to which the
accused had denied and permitted the Police Inspector Mr.RR
Chaudhary to carry out search, and thereafter his signature was
obtained on the resolutions. This witness has further deposed
that on being searched by PI Mr.Chaudhary six small packets
wrapped in bits of Gujarati and English News Paper were found

Page : 22
from the right pocket of accused's pant, which were opened in

presence of panchas in which little dry and little damp vegetal
substance of light bottle-green color was found in all six small
packets, which was prima facie identified as Cannabis (Ganja).
He has further deposed that the accused was asked to produce
permit for keeping the said substance, but the accused was not
having the same, and therefore FSL Investigation Mobile was
called on the spot.
xi. This witness has further deposed that during personal search of
the accused Rs.4,570/- in currency notes of different
denominations were found from the pocket of his shirt and
during the search of the house one plastic bag having logo of
'Bata Shoes' was found hidden beneath the bags of potatoes,
grains etc. from which the substance similar to the substance
viz. dry and damp vegetative substance with seeds, leaves and
stems was found from the small packets which was prima facie
identified as Cannabis (Ganja). He has further deposed that
during this search, Scientific Officer Mr.SN Archarya had
arrived there along with FSL Investigation Mobile and during
primary analysis the Scientific Officer has identified the said
substance as Cannabis (Ganja). This witness has further
deposed that thereafter the substance found from personal
search and search of the house were weighed which were found
to be net weight of 523.45 grams valued to Rs.3,600/-, out of
which, two samples each of 25 grams were separated for FSL
and Reserve Sample, which were packed in zip-lock bag and
after putting them into three different cloth bags, the said cloth
bags were stitched with the help of needle and thread and their
mouths were sealed with sealing wax and seal of 'PSI-SOG-
Vadodara' was affixed and panch slips were tied thereon.
Muddamal parcel was marked as "A", FSL Sample was marked
as "A-1" and the Reserve Sample was marked as "A-2".

Page : 23
xii. He has then deposed that on being interrogating the accused as

to from whom he has obtained this Cannabis, he had told that
he has obtained Cannabis from one person named Kaliya
[absconding accused] residing in Zupadpatti near Railway Line,
Ashwinikumar Road, Surat. He has further deposed that a
Seizure Memo was prepared and was given to the accused and
the panchnama was completed at about 14:13 hours and the
offences against the accused as well as Kaliya were registered
vide II CR No.63/12 with the Manjalpur Police Station. This
witness has identified his signature on the complaint, which is
produced at Exh.18. This witness has also identified the
muddamal articles and also the accused.
xiii. This witness was cross examined by the defence. He has

admitted that ASI Subhashbhai had not informed about
information received by him in writing to the PI. He has also
admitted that after ASI Subhashbhai the second person who
know the information was the PI RR Chaudhary. He has
admitted that till the time he had given the complaint, save the
statement of the accused to the police there was no other
evidence to show that the accused was selling Ganja.
xiv. He has deposed that PI Shri Chaudhary had not directed him to
get xerox copy of the information registered in the confidential
register. He has also admitted that the photocopy of the
information registered in the confidential register was not sent
to the Deputy Commissioner of Police (Crime). He has deposed
that alternative given to the accused for search was given by PI
Shri Chaudhary. He has also admitted that Shri Chaudhary had
told the accused that he is a gazetted officer and the accused
can get his search carried out by him or alternatively the
accused may get his search conducted by the Magistrate or
other gazetted officer. He has admitted that no efforts were
made to take the accused to some other gazetted officer.

Page : 24
However, he has deposed that the accused had denied for the
same. He has admitted that the accused had out of three
options, opted for the option to get his search carried out by PSI
Shri Chaudhary. He has denied to have made breach in respect
of options given to the accused. He has admitted that the seized
muddamal was damp. He has also admitted that before putting
muddamal in plastic bag, it was not dried. He has deposed that
the plastic bag has a zip-lock. He has admitted that even if the
zip-lock is opened and closed often, then also no damage is
caused to zip-lock. He has admitted that for sealing procedure,
their office is having cloth, sealing wax and round seal. He has
deposed that he does not know that who had applied the seals
on muddamal in this case. He has deposed that if there is over-
writing in the complaint then he would put his initials over it.
After going through the complaint, he has admitted that there is
over-writing in time mentioned on back side of page no.1 in the
forth line from bottom of Exh.18. He has deposed that
order/resolution under Sections 42 and 50 of the NDPS Act as
well as seizure memo were prepared by Police Constable
Hemant Tukaram. He has denied that no prohibited article was
found from the person of the accused or from his house. He has
denied to have made breach under Section 42(1)(2) and Section
50 of the NDPS Act. He has denied about any tampering with
the muddamal.
xv. Thus, there is material contradiction in the chief & cross-

examination of this witness. The mandate under Section 42 of
the NDPS Act is not followed. I agree with the submissions of
Shri Shaikh on this count. The legal proposition and the
mandate u/s 42 & 50 of the NDPS Act is discussed later on
along with the judgments relied upon by Shri Shaikh.
xvi. The prosecution has then examined PW-4 – Saurabh

Mahendrarai Acharya at Exh.21. At the relevant time, this

Page : 25
witness was working as Scientific Officer, FSL. He has mainly

deposed that on 17/06/2012 he was on his duty at FSL,
Vadodara, at that time, on receipt of telephone vardhi from
police control, along with narcotics kit and necessary
chemicals, he had gone to place of accused and after receiving
necessary information from the raiding officer, a written yadi
was given to him, which is produced at Exh.22. He has deposed
that samples were taken from the muddamal seized from the
accused as well as from his house and a preliminary
examination was conducted, wherein, it was found that samples
were containing component of cannabis and examination was
found to be "affirmative". He has then deposed that there was
possibility of said substance to be a component of cannabis
plant and he has deposed that it was directed to obtain samples
of 25 – 25 grams from the said muddamal and to send it to
DFL, Gandhinagar for analysis and final report. He has
deposed that preliminary report was given by him to the raiding
officer, which is produced in this case at Exh.23. He has
identified muddamal articles A-1 and A-2 wrapped in plastic
bags and has also identified the muddamal article 4 – a cover.
xvii. This witness has been cross examined by the defence, wherein,
he has admitted that his statement has not been recorded by PI
Shri Dabhi regarding the procedure carried out by him. He has
admitted that there are male and female plants of cannabis. He
has admitted that from the flower of male plant cannabis
(ganja) is not prepared. He has admitted that in his report
Exh.23 he has not described as "female flowering tops and
seeds". He has also admitted that components of cannabid can
be found from the male plant of cannabis sativa . He has also
deposed that the raiding officer had given him the muddamal
which was received from the right side pocket of the accused
and plastic bag.

Page : 26
xviii. Thus, if the deposition of this witness is seen then he admits

that there are male and female plants of cannabis and that from
the flower of the male plant, cannabis is not prepared. It was
therefore, in my considered view, incumbent upon the said
officer to mention in his report at Exh.23 as to whether the
muddamal substance seized from the person of the accused or
from his house was having male or female flower. Non
mentioning of the said fact in his report at Exh.23 would surely
put a doubt on the fact as to whether the substances sized from
the accused's person as well as from his house contained
Cannabis [ganja] or not. Exh.23 is a material document upon
which the prosecution is heavily relying upon. The said
document leaves a room for doubt about the presence of
"ganja".
xix. The next in turn is PW-5 – Dilipkumar Suryabhan Jadav at

Exh.27 who was a PSO of Manjalpur Police Station on
17/06/2012. He has deposed that while he was on his duty from
12:00 to 20:00 hours, on that day, the complaint received by
Shri RR Chaudhary, PI-SOG along with yadi was sent to him
for registering it and he then registered the same in Station
Diary and handed over further investigation to PI Shri Dabhi.
xx. In his cross examination by the defence, he has admitted that

his signature was not obtained by Shri Chaudhary in lieu of
receipt of the complaint. It is pertinent to note that as per
Section 55 of the Act, 1985 the officer in charge of the Police
Station shall have to take charge of the muddamal and keep it
in safe custody. In the case on hand, no such clear evidence is
produced or adduced by the prosecution. No doubt Section 55
is not mandatory but directory in nature, nonetheless, the non-
compliance thereof has to be looked into. Failure of observe the
said provisions would surely have a bearing on the appreciation
of evidence. In this case, the ambiguity as regards the safe

Page : 27
custody of muddamal does create a doubt in the prosecution

story.
xxi. The next in turn was PW-6 – Ratilalbhai Apsingbhai Rathwa

who has been examined by the prosecution at Exh.29. He has
deposed that on 18/06/2012 he was on his duty at Manjalpur
Police Station at that time PS Shri Dabhi had ordered him to
send muddamal parcel no.1 for analysis to Gandhinagar and in
pursuance to that he has received sealed cover of muddamal
article no.1 from Crime Writer Bhalubhai and he had gone to
FSL, Gandhinagar along with Dispatch Note on 19/06/2012
and on returning he has deposited the receipt regarding the
same in the police station. He has identified his signature on the
receipt at Exh.30 and Exh.31. He has also identified the
muddamal parcel A-1.
xxii. In his cross examination by the defence, he has admitted that on

18/06/2012 he had received muddamal article from Crime
Writer Bhalubhai in the evening. He has thereafter deposed that
after receiving muddamal parcel in the evening, he had put it in
the drawer. He has also deposed that he had applied seal of
sealing wax on the articles received and had handed over the
said article to FSL, Gandhinagar and had obtained receipt at
Exh.31. He has denied to have tampered with the seal on
muddamal article.
xxiii. Seen thus, from the deposition of this witness one thing appears
that after he received the muddamal articles parcel in the
evening he had kept it in drawer. It was not put in a safe
custody. Hence, the submissions of Shri Shaikh to the effect
that the possibility of the said articles being tampered with
cannot be discarded. This witness has not deposed that what
steps were taken by him to see that the muddamal articles
received by him could not be tampered.

Page : 28
xxiv. The prosecution has then examined PW-7 – Bhalubhai

Amarsingbhai Rathwa at Exh.32, he was a Crime Writer head
in Manjalpur Police Station on 17/06/2012. He has deposed that
PSO Dilipkumar Suryabhan Jadav had deposited muddamal
seized in II CR No.63/12 for the offences under Sections 20(b)
and 29, which was deposited by him. He has described the
muddamal as (1) a cloth bag containing 473.45 gm. Ganja with
seal of PI-SOG (2) cloth bag containing 25 gm. Ganja for FSL
Sample Mark-A/1 along with Reserve Sample Mark-A/2 and
(3) a plastic bag used for keeping ganja along with bits of paper
in one cover along with Cash Rs.4,750/- along with currency
notes in different denominations, in all to the tune of Rs.8,170/-
were handed over to him, out of which FSL Sample Mark-A/1
was handed over to Police Constable Ratilal for sending it to
FSL, Gandhinagar and a receipt was obtained. He has deposed
that he had noted this in muddamal register in his own hand
writing. The true copy of the said register is produced in this
case at Exh.33. He has identified the muddamal cloth bag
parcel A/1 and A/2 and the currency notes.
xxv. In his cross examination by the defence, he has admitted that he

had prepared muddamal entry from the muddamal receipt. He
has admitted that he has not weighed Muddamal Articles A/1
and A/2. He has also admitted that he had not obtained
signature of police personnel as and when he had handed over
muddamal to him. He has admitted that he has handed over the
muddamal articles having seal of sealing wax to Police
Constable Ratilal on 18/06/2012. He has denied to have
tampered with the seals of the samples.
xxvi. The prosecution has then examined PW-8 – Janmohammad

Fakirbhai Mansuri at Exh.36. On the date of deposition, this
witness was working as Assistant Director in FSL, Ahmedabad.
He has deposed that earlier he was working as Scientific

Page : 29
Officer in DSF, Gandhinagar. He has deposed that he is MSc

PhD (Chemistry). He has then deposed that on 19/07/2012,
when he was on his duty at Gandhinagar, sealed muddamal
articles in respect of II CR No.63/12 was sent to him along with
relevant papers for analysis. He had accepted the said
muddamal and had given receipt to the concerned police station
regarding the same. He has deposed that muddamal article A/1
was sealed and was stitched with tread and was packed in
madarpat cloth bag on which there was a seal of 'PSI-SOG
Vadodara City' which was in English. He has then deposed that
the said seal was intact and was in accordance with the sample
of seal send in the dispatch note. He has thereafter deposed that
upon opening the parcel, paper slip bearing signatures of PI-
SOG and Gurumukh, which were in English and illegible. He
has also deposed that the said muddamal parcel Mark-A/1 was
tied with thread on mouth and was also stitched and there were
three seals of sealing wax. He has further deposed that on
opening the said parcel there was transparent zip-lock plastic
bag greenish-grayish colored vegital substance was found,
whose net weight was 25 gm. He has further deposed that on its
physical examination the same was found greenish-greyish
vegetal substance having typical smell. He has deposed that net
weight of the said muddamal was 25 gm. He has then deposed
that on chemical analysis, the said muddamal was found to be
positive and the preliminary examination of the sample was
found to be positive for ganja. He has also deposed that he had
directed Shri NN Bhatt of his department to take necessary
quantity for botanical analysis. He has thereafter deposed that
after physical and chemical examination he had arrived at the
conclusion that the muddamal article Mark-A/1 was coming in
definition of ganja as defined under the NDPS Act, 1985. He
has also deposed that he has given his opinion accordingly. He
has identified his signature on Exh.37. He has also identified

Page : 30
muddamal article Mark-A/1.
xxvii. This witness has been cross examined by the defence, wherein,
he has admitted that if there are merely stem and seeds of the
cannabis then the same would not come within the definition of
ganja. He has also admitted that if along with seeds and stem
leaves of female cannabis are added then positive test for ganja
would be possible. He has admitted that in his report Exh.37 he
has not described the result of experiment. He has deposed that
he has not described any detail about the report, but he has
described that the result is positive. He has deposed that on
19/06/2012 he had accepted the muddamal and had handed
over it to the custody of his Assistant Director. He has admitted
that custody of muddamal had remained for almost one month
with the Assistant Director. He has deposed that if the
muddamal is damp and remains for one month then there is
possibility of reduction of weight. He has denied to have
tampered with the nature of muddamal.
xxviii. Admittedly, no details are given in Exh.37. The seeds, stems

and leaves of Canabisativa alone would not come within the
definition of 'ganja' and if they are examined through Levine
test then it would not turn positive for ganja. He has admitted
that if the female flowers of Cannabis are added to the seeds,
stems and leaves then only it would confirm the test of 'ganja'.
It is pertinent to note that Exh.23 does not make mention of the
fact that the flowers were male or female. PW3 in his version
speaks that from the search of the person of the accused, the
saubstance was found but does not speak that it contained
flowers also. Even in the substances found from the house of
the accused, this witness does not speak about the flowers.
Thus, if the deposition of this witness is seen and is compared
with the version of PW3 then, the finding of 'ganja' itself is
doubtful because without female flower of Cannabis test for

Page : 31
ganja cannot be positive and PW3 no where speaks about the

inclusion of flower in the seized substances. Both the panch
witnesses have turned hostile and have spoken that the
muddamal articles were not collected in their presence. Thus,
on this count also the submissions of Shri Shaikh to the extent
that the muddamal was tampered with cannot be ruled out.
xxix. The prosecution has then examined PW-9 – Raghuvir

Ramjibhai Dabhi at Exh.38. In the year 2012, he was a Police
Inspector in Manjalpur Police Station and the investigation was
handed over to him on 17/06/2012. On receipt of papers and
after going though it, he had handed over the muddamal which
was received by the PSO. He has then deposed that thereafter
he had recorded the statements of ASI Noormohammad,
Subhashbhai and other policemen and members of raiding
party. He has deposed that he had filed the Charge Sheet.
xxx. This witness was cross examined by the defence, wherein he

has admitted that the first information as per the complaint was
received by the ASI Subhahbhai. He has also admitted that ASI
Subhashbhai had not written down the information anywhere
and no such evidence was found during the investigation. He
has also admitted that from the complaint he came to know that
the information about the alleged offence was registered in the
SOG Confidential Register at Sr. No.1/12. He has also admitted
that during his investigation he has not gone through the SOG
Confidential Register and has not received xerox copy of the
said writing. He has also admitted that from the complaint he
came to know that the information was sent to Deputy
Commissioner of Police (Crime) through SOG. He has also
admitted that no evidence regarding whether any letter was
received by DCP (crime) was found during his investigation.
He has denied that there is a breach of Section 42 of the NDPS
Act. He has deposed that on every muddamal there was a seal

Page : 32
of sealing wax. He has admitted that he had handed over this

seal to Crime Writer Head. He has denied that the muddamal
articles were tampered in the police station. He has admitted
that when the accused was for the very first time produced
before the Court for remand at that time panchnama or
muddamal was not produced before the Court. He has also
admitted that the evidence as to whether the positive report was
sent to the DCP (crime) Vadodara City, was not found during
his investigation.
xxxi. He had carried out the investigation and had handed over the
muddamal collected by PSO to the Crime-writer. He does not
speak about the sealing process. He was the material witness
and could have surely thrown light on the sealing process and
could have deposed that sealing of the muddamal article was
properly done and during the entire investigation the seals on
the muddamal remained in tact and were not tampered with.
Even the prosecution has not found it fit to ask such questions
to this material witness. He admits that one seal of sealing wax
[lac] was applied on each muddamal. In contrast to his version,
PW8 in para 5 page no. 2 speaks that three seals were applied
on the cotton bag muddamal parcel mark A-1. Thus, there is
contradiction on this count also. The prosecution is unable to
explain about this contradiction.
xxxii. The last in turn was PW-10 – Rajeshbhai Revabhai

Chaudhary who has been examined by the prosecution at
Exh.42. He has mainly deposed in his Examination-In-Chief
that on 17/06/2012 when he was on his duty at SOG at that
time ASI Subhashbhai had informed about information which
was registered in the Confidential Register at about 10:15
hours. He has further deposed that copy of the said information
was sent to the DCP (crime) along with forwarding letter and
he had directed Police Constable Hemant to bring panchas and

Page : 33
Police Constable Sardar Rancchodbhai was directed to prepare

investigation kit. He has also deposed that on arrival of panchas
they were introduced with the raiding party and from 10:50 to
11:20 hours, preliminary panchnama was prepared. He has
further deposed that after preparing preliminary panchnama,
police squad along with two panchas proceeded for the raid. He
has also deposed that the entire squad had reached to the place
of information where one person was found in the house and on
being asked in presence of panchas, he had told his name as
Hari @ Hariya Mohan Kahar, after making him acquainted
with the squad and panchas, resolution under Sections 42 and
50 of the NDPS Act were prepared. He has referred to the
documents at Exh.18.
xxxiii. In his cross examination by the defence, this witness has

admitted that first information in respect of the alleged offence
was received by ASI Subhashbhai. He has also admitted that
ASI Subhashbhai has not intimated him in writing about the
same. He has admitted that he was the second person who have
received the information. He has also admitted that whatever
information was given by ASI Subhashbhai he had noted it
accordingly in the register. He has admitted that he had not
given the confidential register to the IO. He has denied to have
called the panchas later on and had obtained their signatures in
the written as well as blank papers. He has deposed that the
house where the raid was carried out was shown by ASI
Subhashbhai. He has thereafter deposed that he has not asked
ASI Subhashbhai as to whether he had seen the said house
previously or not. He has deposed that during the raid in the
house, no document in the nature of Ration Card or Election
Card to show that the accused was residing in the said house
was found. He has deposed that no such verification was made
regarding the same. He has admitted that option was given to

Page : 34
the accused to get his search carried out by him or with the
Gazetted Officer or with the Magistrate. He has admitted that
out of these options, the accused had accepted the option to
carry out search by him. He has admitted that in the complaint
before him and the panchnama who was the particular police
officer who had applied the seal on the muddamal has not been
mentioned. He has admitted that the muddamal seized was
damp. He has also deposed that FSL officer has carried out
preliminary examination. He has also deposed that no vessel or
paper was used to accumulate this muddamal. He has further
deposed that FSL officer had taken samples from the seized
muddamal. He has also admitted that the muddamal was put in
zip-lock bag. He has admitted that zip-lock bag was not applied
hot-seal. He has admitted that on the mouth of the bags three
seals were applied. He has also admitted that samples
containing these three seals were handed over the Manjalpur
Police Station. He has admitted that he has not forwarded the
intimation of the information received by him as well as the
positive raid report to the Commissioner of Police. He has
admitted that at the time of giving seizure memo, no
description of samples was made in it. He has denied to have
made breach of provisions of Sections 42, 50, 52 and 55 of the
NDPS Act. He has denied to have sealed the muddamal on the
spot. He has denied that the muddamal was not received from
the person of the accused or from the house of accused. He has
denied to have carried out second part of the panchnama at the
residence of the accused.
xxxiv. He does not speak that he had sent the copy of the confidential
entry to the Dy. Commissioner through police constable
Arjunbahi Chimanbhai. Even he does not speak about flowers
of Canabis in the substances seized from the person or house of
the accused. He does not speak any thing about the sealing

Page : 35
procedure in his chief-examination. However, in his cross-

examination he does say that three seals were applied upon the
cotton bag which is in contradiction to the version of PW6 &
PW7. There are several material discrepancies which weakens
the prosecution story. Surprisingly, he has simply stated that he
is shown the muddamal which is identified by him. The
prosecution has not even taken the task to refer to the
muddamal articles A, A-1 & A-2 to this witness. He has not
given the description of the muddamal articles seized by him
during the raid carried out. It is pertinent to note that in his
cross-examination, he has admitted that the necessary extract
from the confidential register was not sent to the Dy.
Commissioner. He has admitted that he had given the accused
an option to get his personal search carried out from him. This ,
in my considered view, was in breach of the provisions of
Section 50 of the NDPS Act. He too speaks that he does not
know as to which police staff had carried out the sealing
process and the same is not mentioned in the panchanama. He
has admitted that when the raiding team reached the house of
the accused, they did not take search of each other.
xxxv. Shri Shaikh has relied upon the judgment reported in LAWS
(SC) 2014 2 71. In the matter of State of Rajasthan vs.
Parmanand, the Hon'ble Supreme Court has while dealing with
the statutory provisions of Section 50 of the NDPS Act,
observed & held as under-
''13... It is now necessary to examine whether in this case,

Section 50 of the NDPS Act is breached or not. The police
witnesses have stated that the respondents were informed that
they have a right to be searched before a nearest gazetted
officer or a nearest Magistrate or before PW-5 J.S. Negi, the
Superintendent. They were given a written notice. As stated by
the Constitution Bench in Baldev Singh, it is not necessary to
inform the accused person, in writing, of his right under
Section 50(1) of the NDPS Act. His right can be orally
communicated to him. But, in this case, there was no individual

Page : 36
communication of right. A common notice was given on which

only respondent No.2 Surajmal is stated to have signed for
himself and for respondent No.1 Parmanand. Respondent No.1
Parmanand did not sign.
14... In our opinion, a joint communication of the right

available under Section 50(1) of the NDPS Act to the accused
would frustrate the very purport of Section 50. Communication
of the said right to the person who is about to be searched is
not an empty formality. It has a purpose. Most of the offences
under the NDPS Act carry stringent punishment and, therefore,
the prescribed procedure has to be meticulously followed.
These are minimum safeguards available to an accused against
the possibility of false involvement. The communication of this
right has to be clear, unambiguous and individual. The accused
must be made aware of the existence of such a right. This right
would be of little significance if the beneficiary thereof is not
able to exercise it for want of knowledge about its existence. A
joint communication of the right may not be clear or
unequivocal. It may create confusion. It may result in diluting
the right. We are, therefore, of the view that the accused must
be individually informed that under Section 50(1) of the NDPS
Act, he has a right to be searched before a nearest gazetted
officer or before a nearest Magistrate. Similar view taken by
the Punjab & Haryana High Court in Paramjit Singh and the
Bombay High Court in Dharamveer Lekhram Sharma meets
with our approval. It bears repetition to state that on the
written communication of the right available under Section
50(1) of the NDPS Act, respondent No.2 Surajmal has signed
for himself and for respondent No.1 Parmanand. Respondent
No.1 Parmanand has not signed on it at all. He did not give his
independent consent. It is only to be presumed that he had
authorized respondent No.2 Surajmal to sign on his behalf and
convey his consent. Therefore, in our opinion, the right has not
been properly communicated to the respondents. The search of
the bag of respondent No.1 Parnanand and search of person of
the respondents is, therefore, vitiated and resultantly their
conviction is also vitiated.
15... We also notice that PW-10 SI Qureshi informed the

respondents that they could be searched before the nearest
Magistrate or before a nearest gazetted officer or before PW-5
J.S. Negi, the Superintendent, who was a part of the raiding
party. It is the prosecution case that the respondents informed
the officers that they would like to be searched before PW-5
J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again
a breach of Section 50(1) of the NDPS Act. The idea behind
taking an accused to a nearest Magistrate or a nearest
gazetted officer, if he so requires, is to give him a chance of

Page : 37
being searched in the presence of an independent officer.

Therefore, it was improper for PW-10 SI Qureshi to tell the
respondents that a third alternative was available and that
they could be searched before PW-5 J.S. Negi, the
Superintendent, who was part of the raiding party. PW-5 J.S.
Negi cannot be called an independent officer. We are not
expressing any opinion on the question whether if the
respondents had voluntarily expressed that they wanted to be
searched before PW-5 J.S. Negi, the search would have been
vitiated or not. But PW-10 SI Qureshi could not have given a
third option to the respondents when Section 50(1) of the
NDPS Act does not provide for it and when such option
would frustrate the provisions of Section 50(1) of the NDPS
Act. On this ground also, in our opinion, the search
conducted by PW-10 SI Qureshi is vitiated. We have,
therefore, no hesitation in concluding that breach of Section
50(1) of the NDPS Act has vitiated the search. The conviction
of the respondents was, therefore, illegal. The respondents have
rightly been acquitted by the High Court. It is not possible to
hold that the High Court's view is perverse. The appeal is,
therefore, dismissed.''
xxxvi. Para 15 of the aforesaid judgment is applicable to this case.
xxxvii. Shri Shaikh has also relied upon the judgment reported in 2008
(1) Crimes 119 (SC). In the matter of Directorate of Revenue
vs. Mohammed Nisar Holia, the Hon'ble Supreme Court while
dealing with the statutory compliance of the provisions of
NDPS Act, has held as under-
''19... In the instant case, the statutory requirements had not

been complied with as the person who had received the first
information did not reduce the same in writing. An officer who
received such information was bound to reduce the same in
writing and not for the person who hears thereabout.
Furthermore, in this case, apart from proving the fax and the
copy of a challan nothing else has been proved. The fax was
illegible. It allegedly was received in the PCO run by PW-17.
He could not prove the contents of the fax. He also could not
show when the same was received and from whom. It has not
been shown that the accused was the person who obtained the
said fax from PW-17. Furthermore, contents of the said
documents had not been proved. In absence of the
aforementioned details, the fax being illegible and its contents
being not known, the question of the same being admissible in
evidence in terms of Section 67 of the Act would not arise. The

Page : 38
xeroxed copy of the said fax had not been proved in the strict
sense of the term. No secondary evidence could have been led
to prove another secondary evidence. Contents of document are
required to be proved. The contents of a document could be
held to have been proved in terms of Section 66 only when the
contents are decipherable and not otherwise.''
xxxviii.He has also relied upon the judgment reported in LAWS(SC)

2011 5 54. In the matter of Narcotics Central Bureau vs. Sukh
Dev Raj Sodhi, the Hon'ble Supreme Court has while dealing
with the provisions of Section 50 of the Act, 1985 held thus-
''5... The obligation of the authorities under Section 50 of the

NDPS Act has come up for consideration before this Court in
several cases and recently, the Constitution Bench of this Court
in the case of Vijaysinh Chandubha Jadeja V/s. State of
Gujarat [(2011) 1 SCC 609] has settled this controversy. The
Constitution Bench has held that requirement of Section 50 of
the NDPS Act is a mandatory requirement and the provision of
Section 50 must be very strictly construed.
6... From the perusal of the conclusion arrived at by this Court

in Vijaysinh Chandubha Jadeja's case, it appears that the
requirement under Section 50 of the NDPS Act is not complied
with by merely informing the accused of his option to be
searched either in the presence of a gazetted officer or before a
Magistrate. The requirement continues even after that and it is
required that the accused person is actually brought before the
gazetted officer or the Magistrate and in Para 32, the
Constitution Bench made it clear that in order to impart
authenticity, transparency and creditworthiness to the entire
proceedings, an endeavour should be made by the prosecuting
agency to produce the suspect before the nearest Magistrate.
7... That being the law laid down by the Constitution Bench of
this Court on interpretation of Section 50 of the NDPS Act, we
do not think that the obligation under Section 50 of the Act has
been discharged statutorily by the appellant in this case. We,
therefore, find no reason to interfere with the finding made by
the High court. The appeal is, accordingly, dismissed.''
xxxix. Shri Shaikh has then relied upon 2010 (1) EFR 442 [State of
Rajasthan vs. Babu Lal]. In the said matter the Hon'ble
Supreme Court has while confirming the judgment of the
Hon'ble High Court of Rajasthan, observed thus-

Page : 39
“..... The High Court found that there was non-compliance with
the requirement of Section 42(2) of the Act. Various factual
aspects have been highlighted by the High Court to come to
this conclusion.
... The documents required to prove the receipt of oral

information were not brought on record. That being so, we are
not inclined to interfere with the judgment of the High Court.
The appeal fails and it is dismissed accordingly.''
xl. He has then relied upon the case of Noor Aga vs. State of
Punjab and another reported in 2008 (2) EFR 707. In the said
judgment, the Hon'ble Supreme Court has decided thus-
''145... The seal was not even deposited in the malkhana. As no

explanation whatsoever has been offered in this behalf, it is
difficult to hold that sanctity of the recovery was ensured.
146... Even the malkhana register was not produced. There

exist discrepancies also in regard to the time of recovery. The
recovery memo Exhibit PB shows that the time of seizure was
11.20 pm. PW1, Kulwant Singh and PW2, K.K. Gupta,
however, stated that the time of seizure was 8.30 pm.
Appellant's defence was that some carton left by some
passenger was passed upon him being a crew member in this
regard assumes importance (See Jitendra (supra) Para 6).
147... Panchnama was said to have been drawn at 10.00 pm as

per PW1 whereas PW2 stated that panchnama was drawn at
8.30 pm. Exhibit PA, containing the purported option to
conduct personal search under Section 50 of the Act, only
mentioned time when the flight landed at the airport.
148... In Baldev Singh (supra), it was stated :
"28... This Court cannot overlook the context in which the

NDPS Act operates and particularly the factor of widespread
illiteracy among persons subject to investigation for drug
offences. It must be borne in mind that severer the punishment,
greater has to be the care taken to see that all the safeguards
provided in a statute are scrupulously followed. We are not
able to find any reason as to why the empowered officer should
shirk from affording a real opportunity to the suspect, by
intimating to him that he has a right "that if he requires" to be
searched in the presence of a Gazetted Officer or a Magistrate,
he shall be searched only in that manner. As already observed
the compliance with the procedural safeguards contained in

Page : 40
Section 50 are intended to serve dual purpose - to protect a

person against false accusation and frivolous charges as also
to lend credibility to the search and seizure conducted by the
empowered officer. The argument that keeping in view the
growing drug menace, an insistence on compliance with all the
safeguards contained in Section 50 may result in more
acquittals does not appeal to us. If the empowered officer fails
to comply with the requirements of Section 50 and an order or
acquittal is recorded on that ground, the prosecution must think
itself for its lapses. Indeed in every case the end result is
important but the means to achieve it must remain above
board. The remedy cannot be worse than the disease itself. The
legitimacy of judicial process may come under cloud if the
Court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also
undermine respect for law and may have the effect of
unconscionably compromising the administration of justice.
That cannot be permitted."
Independent Witnesses
149... It is accepted that when the appellant allegedly opted for

being searched by a Magistrate or a Gazetted Officer, Kuldip
Singh called K.K. Gupta, Superintendent Customs, PW2) and
independent witnesses Mahinder Singh and Yusaf. Whereas
K.K. Gupta was examined as PW2, the said Mahinder Singh
and Yusuf were not examined by the prosecution. There is
nothing on record to show why they could not be produced.
Their status in life or location had also not been stated. It is
also not known as to why only the said two witnesses were sent
for. The fact remains that they had not been examined.
Although examination of independent witnesses in all
situations may not be imperative, if they were material, in
terms of Section 114(e) of the Evidence Act, an adverse
inference could be drawn.
150... In a case of his nature, where there are a large number of

discrepancies, the appellant has been gravely prejudiced by
their non- examination. It is true that what matters is the
quality of the evidence and not the quantity thereof but in a
case of this nature where procedural safeguards were required
to be strictly complied with, it is for the prosecution to explain
why the material witnesses had not been examined. Matter
might have been different if the evidence of the Investigating
Officer who recovered the material objects was found to be
convincing. The statement of the Investigating Officer is wholly
unsubstantiated. There is nothing on record to show that the
said witnesses had turned hostile. Examination of the
independent witnesses was all the more necessary inasmuch as

Page : 41
there exist a large number of discrepancies in the statement of

official witnesses in regard to search and seizure to which we
may now take note of.
Discrepancies in the Statements of Official Witnesses
151... Section 50 of the Act provides for an option to be given.

This Court in Baldev Singh (supra) quoted with approval the
decision of the Supreme Court of United States in Miranda v.
Arizona [(1966) 384 US 436] in the following terms :
"The Latin maxim salus populi suprema lex (the safety of the
people is the supreme law) and salus republicae suprema lex
(safety of the State is the supreme law) coexist and are not only
important and relevant but lie at the heart of the doctrine that
the welfare of an individual must yield to that of the
community. The action of the State, however, must be `right,
just and fair'."
152... Justness and fairness of a trial is also implicit in Article

21 of the Constitution.
153... A fair trial is again a human right. Every action of the

authorities under the Act must be construed having regard to
the provisions of the Act as also the right of an accused to have
a fair trial.
154... The courts, in order to do justice between the parties,

must examine the materials brought on record in each case on
its own merits. Marshalling and appreciation of evidence must
be done strictly in accordance with the well known legal
principles governing the same; wherefor the provisions of the
Code of Criminal Procedure and Evidence Act must be
followed.
155... Appreciation of evidence must be done on the basis of

materials on record and not on the basis of some reports which
have nothing to do with the occurrence in question.
156... Article 12 of the Universal Declaration of Human Rights

provides for the Right to a fair trail. Such rights are enshrined
in our Constitutional Scheme being Article 21 of the
Constitution of India. If an accused has a right of fair trial, his
case must be examined keeping in view the ordinary law of the
land.
157... It is one thing to say that even applying the well-known

principles of law, they are found to be guilty of commission of
offences for which they are charged but it is another thing to

Page : 42
say that although they cannot be held guilty on the basis of the
materials on record, they must suffer punishment in view of the
past experience or otherwise.
158... PW1 states that he had asked the accused that a search
be conducted under the Act before a Gazetted Officer or a
Magistrate but the same was not mentioned in the panchnama
Exhibit PC. If the evidence of PW1 in that behalf is correct, we
fail to understand how PW2 satisfied himself that an option
had been given to the accused to be searched before a gazetted
officer. Exhibit PA shows that option to search was given after
the recovery was made since it is stated therein:
"After recovery the custom officer informed his senior officer

and was asked whether I would like to present myself for
personal search before a Magistrate or a Gazetted Officer"
159... The said document, therefore, indicates that the gazetted

officer or the independent witnesses were not present at the
time of purported recovery. Exhibit PC, however, shows the
presence of independent witnesses at the time of recovery. The
credibility of the statements, having regard to these vital
discrepancies stands eroded.
160... A person who is sought to be arrested or searched has

some rights having regard to the decision of this Court in D.K.
Basu v. State of West Bengal [(1997) 1 SCC 416]. D.K. Basu
rule states that if a person in custody is subjected to
interrogation, he must be informed in clear and unequivocal
terms as to his right to silence. This rule was also invoked in
Balbir Singh (supra).
161... We are not oblivious that the decision of State of

Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350]
wherein Section 50 of the Act having been held to be
inapplicable in relation to a search of a bag but in this case the
appellant's person had also been searched. The High Court
disregarded that although Exhibit PA may not affect a technical
compliance of Section 50 of the Act on taking a complete and
circumspect view of the materials brought on record, but the
same, in our opinion, affect the credibility of the documentary
evidence and the statements of the official witnesses, namely,
PW1 and PW2. If origin of principle has not been followed and
discrepancies and contradictions have occurred in the
statements of PW1 and PW2 the same would cause doubt on
the credibility of prosecution case and their claim of upholding
procedure established by law in effecting recovery.
162... Our aforementioned findings may be summarized as

Page : 43
follows :
1. The provisions of Sections 35 and 54 are not ultra vires the

Constitution of India.
2. However, procedural requirements laid down therein are

required to be strictly complied with.
3. There are a large number of discrepancies in the treatment

and disposal of the physical evidence. There are contradictions
in the statements of official witnesses. Non-examination of
independent witnesses and the nature of confession and the
circumstances of the recording of such confession do not lead
to the conclusion of the appellant's guilt.
4. Finding on the discrepancies although if individually

examined may not be fatal to the case of the prosecution but if
cumulative view of the scenario is taken, the prosecution's case
must be held to be lacking in credibility.
5. The fact of recovery has not been proved beyond all

reasonable doubt which is required to be established before the
doctrine of reverse burden is applied. Recoveries have not been
made as per the procedure established by law.
6. The investigation of the case was not fair.
We, therefore, are of the opinion that the impugned judgment

cannot be sustained which is set aside accordingly.
Before, however, parting with this judgment, we would like to

place emphasis on the necessity of disposal of such cases as
quickly as possible. The High Courts should be well advised to
device ways and means for stopping recurrence of such a case
where a person undergoes entire sentence before he gets an
opportunity of hearing before this Court.
The appeal is allowed with the aforementioned observations.''
xli. The somber scenario that unfurls out of the saforesaid

judgments is that the breach of the mandate under Sections 42
and 50 of NDPS Act vitiates the search and the recovery of
illicit articles becomes illegal.
xlii. The entire evidence before me does not inspire any confidence
regarding the prosecution. Whether any such raid was in fact

Page : 44
carried out or not is also doubtful. Whether the seized

substances contained Cannabis [ganja] or not is also doubtful.
xliii. The person who has done the sealing procedure is not examined
by the prosecution. On the contrary, the IO has deposed that he
is not aware of the fact as to which officer had done the sealing
process.
xliv. The ASI Subhash Raghunath who had received the first
information has not been examined in this case. He has not
taken down the information received by him in writing. There
is thus clear breach of mandatory provisions of Section 42 of
the NDPS Act, 1985.
xlv. Police constable Hemant Tukaram is not examined in this case.
xlvi. There is material contradiction in the version of PW-3 to the

effect that in his chief he speaks about getting a xerox copy of
the entry registered in the confidential register and sending it to
the Dy. Commissioner of police whereas in his cross-
examination, he has admitted not to have sent any such copy to
the Dy. Commissioner.
xlvii. PW-1 & PW-2 who are the material panch witnesses have not
supported the prosecution case. They have not even identified
the accused in the court. They have spoken that they had not
gone to the place where the raid was to be carried out but on the
next day they had signed on the written panchnama and certain
blank papers. They have not identified the accused person.
They have spoken that no raid was carried out in their presence
and that no muddamal articles were seized in their presence
from the person of the accused as well as from his house. This
also leaves a doubt on the panchnama produced at Exh.8.
xlviii. The substances seized from the person of the accused and from

Page : 45
his house were having female or male flowers is not mentioned

in the report at Exh.23 by the FSL officer. This also leaves
doubt on the prosecution story to the extent that the substances
were ganja.
xlix. As regards the seals applied there is discrepancies in the

versions of PW-5, PW-6, PW-7 & PW-8. The muddamal was
admittedly kept in the drawer in police station. On appreciation
of evidence it reveals that the complainant Firozkhan Pathan
nowhere in his chief states that the muddamal was handed over
to the PSO. Thus, the possibility of tampering with the
muddamal cannot be discarded in this case.
l. Moreover, considering the definition of word "ganja" defined

under Section 2(iii) (b) of the NDPS Act, it transpires that seeds
and leaves not accompanied by flower tops, cannot constitute
ganja and the same cannot be treated as ganja. The aforesaid
section defines ganja as the flowering or fruiting tops of the
cannabis plant (excluding the seeds and leaves when not
accompanied by the tops), by whatever name they may be
known or designated. Seen thus, even the prosecution has failed
to establish beyond reasonable doubt that the substances seized
from the person of the accused as well as from his house is
'ganja'.
li. There is no independent evidence of the persons residing

nearby the alleged house of the accused. It is the case of the
prosecution that the present accused purchased the alleged
ganja from the absconding accused Kaliya and in turn used to
sell the same without permit. There are no whereabouts of the
absconding accused. No individual person has come forward
for the prosecution telling that the present accused Hari @
Hariya used to sell ganja. This also weakens the prosecution
story.

Page : 46
lii. The versions of the prosecution witnesses and the manner in

which the muddamal articles have been dealt with by the
investigating agency opens room for its tampering.
liii. When both the panchas did not support the prosecution case,
some corroboration in material particulars from independent
evidence/source was indeed required. Nothing cogent has been
put up before this court save the bare words of the police
witnesses.
liv. There is overwriting in the complaint Exh.18 in timing. There

is no initial of the complainant. Moreover the panchnama Exh.8
does not speak about the time as to when the second part of the
raid had actually started. The violation of Section 42 & 50 of
the NDPS Act would, in my considered view, amount to non-
compliance of the requirements of law. The first information
which is received and is required to be reduced into writing is a
document, in my opinion, of vital importance as it is the
foundation of entire prosecution case. Thus, if that foundation
is weak, the entire prosecution case would fall down.
lv. PW10 had given the accused an option to get his personal
search carried out from him as well as from the gazetted officer
or magistrate. This, in my considered view, was in breach of the
mandatory provisions of Section 50 of the NDPS Act the non-
compliance of which vitiates the search.
11. The entire judgments relied upon by Shri Shaikh are squarely
applicable to the facts & circumstances of this case.
12. In the case of Ismailkhan Aiyubkhan Pathan & other vs. State of
Gujarat, reported in 2000 (10) SCC 257, the Hon'ble Supreme Court
has held thus-
''4... There is no evidence that anybody had seen that any one of the

Page : 47
accused was dealing with narcotic drugs. There is also no evidence to

show that any one of them had admitted either through a confession or
otherwise of any incriminating role. Nor is there evidence that the
accused persons, who were found sitting in the room, had possession
of the room, actual or constructive. It is the prosecution case that the
said room was in the possession of Nasir. But that Nasir is not an
accused in this case. He was not examined as a prosecution witness to
disclose as to how the accused persons happened to be in the room.
None of the neighbours supported the prosecution case that any one of
the accused had a connection with the article in question.
5... Thus, we are left with only a modicum of evidence as against the
accused, which only shows that they were present in the room which
was in the possession of one Nasir and that the said room contained a
gunny bag with the narcotic substance "charas".
6... We are unable to sustain the conviction of the offence under

Section 20(b) read with Section 29 of the Act as for any one of the
appellants on the strength of the aforesaid evidence. It is too
insufficient to bring home the guilt of the appellants.
7... It appears that the High Court put the burden on the appellants to
explain as to how they were present in the room. This is what the High
Court has observed:
"In the present case, at odd hours of the night when the premises was
raided, all the accused were present and have not explained as to how
and why and since when they were present in the premises. Therefore,
in our opinion, only inference can be drawn from their unexplained
presence in the premises, they being not tenants of the premises is that
they were in possession of the premises at the relevant time and the
substance found from that premises is possessed by them."
8... There is no statutory provision for drawing any presumption that a

person who was present at any particular place shall be presumed to
be in possession of the narcotic or psychotropic substance. No
presumption under law can be drawn even under Section 114 of the
Evidence Act merely because these persons were present when PW 7
went there.
9... Either those persons would have been casually present in the room
or at least one of them would have been unaware of what was going on
inside the room. We are not told who among the many accused that one
possible innocent person could have been.
10.. In the light of the aforesaid imponderables it is difficult to sustain

the conviction as against any one of the appellants. We, therefore,
allow these appeals and set aside the conviction and sentence passed
on these appellants. We acquit them and direct them to be set free

Page : 48
unless they are required in any other case.''
13. Shri Shaikh has vehemently argued that in the instant case, there is not
proof adduced by the prosecution to show the ownership of the house.
It is true that the prosecution has not shown to this court as to whether
the accused was the owner of the house where the raid was carried out
and the substances were found & seized. None from the neighbours
have been examined by the prosecution. The prosecution has further
failed to prove the ownership of the premises from where the seized
articles were found. Surprisingly, the document at mark 6/13 was not
even referred to by the prosecution. It is not to be forgotten that there is
no connective evidence with accused and the substances found from
the house. In absence of any clinching evidence, it cannot be
concluded that the offending substances were in exclusive possession
of the accused.
14. Applying the principles of law enunciated by the Hon'ble Supreme

Court herein above to the facts and circumstances of the case on hand,
it is clear from the evidence of the prosecution witnesses that the
provisions of Section- 42 & 50 have not been scrupulously complied
with. In my considered view a conjoint reading of all the judgments of
the Hon'ble Supreme Court referred & relied upon herein above
[supra] speak that the compliance of the statutory provisions under
Section 42 & 50 is mandatory and partial compliance would surely
amount to non-compliance. In the case on hand, it can surely be said
that the mandatory provisions of law have not been complied with in
letter and spirit. This in my considered view, vitiates the whole search.
15. Coupled with that there are several more material discrepancies
discussed herein above which also weakens the prosecution case.
16. The prosecution has thus failed to prove that the accused Hari @
Hariya has contravened with the provisions of the NDPS Act and has
committed the offence under Section 20(b) R/w. Section 29 of the said
Act, 1985. Point no.[i] is accordingly answered in negative.

Page : 49
17. B. Point No.[ii]:
i. It is no longer res integra and stands concluded that a stricter

law imposes extra burden requiring the stricter proof from the
prosecution. True it is that there are presumptions under
Sections 35 and 54 of the N.D.P.S.Act against the accused.
Nonetheless, the prosecution is entitled to the benefit of such
presumption only if it discharges its burden of proving the facts
upon which the presumptions can be based. The prosecution in
the instant case has miserably failed to establish the guilt of the
present accused beyond reasonable doubt.
ii. In the case of State of Punjab Vs. Baldev Singh reported in

AIR 1999 SC 2378, the Hon'ble Supreme Court has held thus:
"An illegal search cannot also entitle the prosecution to raise a

presumption under Section 54 of the Act because presumption
is an inference of fact drawn from the facts which are known as
proved. A presumption under Section 54 of the Act can only be
raised after the prosecution has established that the accused
was found to be in possession of the contraband in a search
conducted in accordance with the mandate of Section 50."
iii. In view of the aforesaid legal discussions, I do not concur with

the submissions of Shri Darji. The submissions of Shri Shaikh
bear merits & substance. The same are therefore upheld.
Resultantly, I put an end to this judgment with the following
final order.
:: ORDER ::
1) Accused – Hari @ Hariya Mohan Kahar, R/o. Ganeshnagar,

Opp. Parsi Bhista Compound, Vishwamitri River's Bank, Vadodara
is hereby acquitted from the offences under Section 20(b) R/w.
Section 29 of the Narcotics and Psychotropic Substances Act, 1985
by giving him the benefit of doubt.
2) Bail-bond of the accused stands discharged.
3) Accused – Hari @ Hariya Mohan Kahar shall execute bail bond of

Page : 50
Rs.5,000/- (Rupees Five Thousand only) with surety of the like

amount in compliance with Section 437A of the Code of Criminal
Procedure, 1973, to appear before the higher Court as and when
such Court issues notice in respect of an appeal or revision/petition
filed against the judgment of this Court within five days of this
judgment.
4) As and when the other co-accused who has been shown in Column
no.2 of the Charge Sheet and who is at present absconding is
arrested, the Investigating Agency shall file a supplementary
Charge Sheet against him in consequence whereof the trial against
him shall proceed in accordance with law.
5) The muddamal articles collected in this case shall not be destroyed

and the documents produced by the prosecution shall not be
returned to the prosecution, but, shall be retained by the Registry,
since the trial will proceed against the absconding accused person
Kaliya as and when he is arrested by the Investigating Agency.
6) For the present, this trial against the accused Hari @ Hariya
Manhar Kahar stands concluded in acquittal. The R & P of this case
be consigned to the record room.
Pronounced in open Court on this 30th day of August 2017

Sd/-
(ROHEN K CHUDAWALA)
2 ADDITIONAL SESSIONS JUDGE
ND
AND
SPECIAL JUDGE (NDPS)
VADODARA
UID CODE NO.GJ01317
Jayprakash Chauhan – PS

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Page : 1

RECEIVED ON : 16th August 2012

IN THE COURT OF SPECIAL JUDGE (NDPS) AT VADODARA

SPECIAL (NDPS) CASE NO.7 OF 2012

CASES RELIED UPON:

TRIAL OF THE OFFENCES

Spl. (NDPS) Case No.7 of 2012 (Judgment)

2. Facts of the prosecution case in nutshell:

i. It is the case of the prosecution that the complainant – un-

ii. According to the prosecution the complainant had then stated

Spl. (NDPS) Case No.7 of 2012 (Judgment)

Police Constable – Laxmansinh Udesinh. After preparing

iii. According to the prosecution, the entire squad had reached to

Spl. (NDPS) Case No.7 of 2012 (Judgment)

was identified as Cannabis (Ganja). Thereafter the substance

iv. The complainant has further stated that on being interrogated

3. On completion of the investigation, the Charge Sheet was filed against

Spl. (NDPS) Case No.7 of 2012 (Judgment)

(A) Prosecution Witnesses – The prosecution in order to bring home

Exh.7 - PW-1 : Mayurbhai Vasantbhai Pandit – Panch

Exh.14 - PW-2 : Gurumukh Kanaiyalal Khatri – Panch

Exh.17 - PW-3 : Firozkhan Nabikhan Pathan – Complainant

Exh.21 - PW-4 : Saurabh Mahendrarai Acharya – Scientific

Exh.26 - PW-5 : Dilipkumar Suryabhan Jadav – PSO

Exh.29 : PW-6 : Ratilalbhai Aapsingbhai Rathwa – Police

Exh.32 - PW-7 : Bhalubhai Amarsingbhai Rathwa – Head

Exh.36 - PW-8 : Janmohammad Fakirbhai Mansuri –

Exh.38 - PW-9 : Raghuvir Shamjibhai Dabhi – Police

Exh.42 - PW-10 : Rajeshbhai Revabhai Chaudhary – Police

Spl. (NDPS) Case No.7 of 2012 (Judgment)

(B) Documentary Evidence:

Exh.9 - Resolution under Sections 42 and 50 of NDPS Act

Exh.10 - Persuading Letter

Exh.11 - Seizure Memo

Exh.12 - Arrest Memo

Exh.22 - Yadi for FSL (Inv.)

Exh.23 - FSL (Inv.) Report

Exh.28 - Yadi for handing over investigation

Exh.30 - Yadi to send the muddamal to FSL

Exh.31 - FSL Receipt

Exh.37 - FSL Report

Exh.43 - Letter informing about secret information

Exh.44 - Extract of Secret Information Register

6. Upon giving careful consideration upon rival contentions, oral as well

:: POINTS FOR DETERMINATION ::

(1) Whether the prosecution proves beyond reasonable doubt that

Spl. (NDPS) Case No.7 of 2012 (Judgment)

(2) What order?

My answers to the above points are as under:

(2) As per final order.

7. Shri MR Darji's submissions on behalf of the State:

i. Learned In-Charge DGP Shri Darji has vehemently submitted

Spl. (NDPS) Case No.7 of 2012 (Judgment)

accused no.2 is absconding.

v. He has also referred to the deposition of PW-5 – the PSO at

8. Shri MH Shaikh's submissions on behalf of the accused:

i. Shri MH Shaikh has at the outset submitted that it is a cardinal

Spl. (NDPS) Case No.7 of 2012 (Judgment)

ii. He has thereafter drawn the attention of this Court to Section