2006 (1) TMI 669 - HC - Indian Laws

Court affirms prosecution's NDPS Act compliance, convicts for abetment, and orders muddamal disposal.

Mahamad Parvezkhan Mahamad Faruqkhan Shaikh and Ors. Versus State of Gujarat

Mahamad Parvezkhan Mahamad Faruqkhan Shaikh and Ors. Versus State of Gujarat - TMI Issues Involved:1. Compliance with Section 41(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).2. Discrepancy regarding the place of incident.3. Alleged destruction of muddamal (seized substances).4. Mode of taking samples.5. Possibility of tampering with samples.6. Proper maintenance of muddamal records.7. Completeness of the investigation.8. Compliance with Section 55 of the NDPS Act.9. Conviction of co-accused with the aid of Section 29 of the NDPS Act.Comprehensive, Issue-wise Detailed Analysis:1. Compliance with Section 41(2) of the NDPS Act:The court found that PI Mr. Rathod, who received the information, conveyed it to PI Mr. Chudasama, who then took necessary action. The phrase 'reason to believe' was interpreted based on the Supreme Court's standards, indicating that PI Mr. Chudasama had sufficient cause to believe the information. The court held that PI Mr. Chudasama, being an empowered officer, reduced the information into writing by incorporating it into the panchnama, thus complying with Section 41(2). Even if PI Mr. Rathod was required to comply, his entry in the Movement Register, proved by PI Mr. Vaghela, satisfied this requirement. Therefore, the court concluded that the prosecution complied with Section 41(2) of the Act.2. Discrepancy regarding the place of incident:The court noted minor discrepancies in the testimonies regarding the exact gate of the Civil Hospital where the incident occurred. However, it emphasized that the distance between Gate No. 1 and Gate No. 3 was minimal (300 steps), and the overwhelming evidence indicated the incident occurred near Gate No. 3. Therefore, the court rejected the contention that the place of the incident was not satisfactorily established.3. Alleged destruction of muddamal:The court examined the records and found that the entry indicating the destruction of muddamal related to another case. The chargesheet and the produced muddamal were consistent, and the police officers correctly identified the muddamal in court. Therefore, the claim that the muddamal was destroyed before filing the chargesheet was factually incorrect.4. Mode of taking samples:The court found that despite a panch-witness stating that only one sample was taken, the testimonies of PI Mr. Chudasama and the FSL report indicated that samples were taken from each packet and tested. The panchnama and the consistent testimonies of the police officers confirmed that the mode of taking samples was not defective.5. Possibility of tampering with samples:The court held that the sealing procedure was foolproof, involving multiple layers of wrapping and sealing with signatures of panch-witnesses. The intact seals found by the FSL further confirmed no tampering. The court dismissed the contention that the difference in the number of seals indicated tampering.6. Proper maintenance of muddamal records:Despite minor discrepancies in the testimonies of police officers regarding the presence of slips on packets, the court found that the muddamal was properly maintained, sealed, and kept in safe custody until it reached the FSL. The records and testimonies supported the proper handling of the muddamal.7. Completeness of the investigation:The court found that the investigation was complete, as the chargesheet indicated efforts to trace additional suspects. The prosecution proved the primary fact that the accused were found in possession of brown sugar, and the investigation was not incomplete.8. Compliance with Section 55 of the NDPS Act:The court noted that Sections 52, 55, and 57 of the NDPS Act are directory, not mandatory. The sealed samples were handed over to the PSO without the need for further sealing, and the court found no serious violation of Section 55. Therefore, the appellants could not be given the benefit of doubt on this ground.9. Conviction of co-accused with the aid of Section 29 of the NDPS Act:The court found that the co-accused were not strangers to the main accused and had conspired to deliver brown sugar. The evidence showed they attempted to abscond when apprehended. The court concluded that the co-accused had abetted the main accused, justifying their conviction under Section 29 of the Act.Conclusion:The court dismissed both appeals, finding no merit in the arguments presented by the appellants. The muddamal was ordered to be disposed of as per the trial court's directions.