AHMED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Leave granted.

(2.) The appellant was tried by the learned Additional Sessions Judge, Mahsana in the State of Gujarat, for the offence under Section 20-B(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'), as he was found in possession of 9 gms. of Charas on 10-5-1992, which he was selling outside his house. The learned Addl. Sessions Judge, on consideration of the prosecution evidence, came to the conclusion that prosecution has been able to establish beyond reasonable doubt that Charas was found from the pocket of the trouser of the accused, which weigh about 9 gms. and as such the accused must be held to have committed the offence under Section 20-B(2) of the Act. He accordingly, convicted the accused of the said offence and sentenced him to undergo rigorous imprisonment for 10 years and a fine of rupees one lakh. On appeal by the accused, the High Court affirmed the conviction and sentence and hence the present appeal.

(3.) The prosecution case in nutshell is that on receipt of certain information that the accused is dealing with narcotics, the empowered officer called the panch witnesses and raided the house of the accused. While the accused was sitting on a cot, the person of the accused was searched and from his pant pocket, 9 gms. of Charas was recovered, which later on was established as Charas. The factum of recovery of Charas from the pant of the accused is established through the panch witness PW1 and the seizure list Exh.6 and Exh.17 but the said witness PW1 in cross-examination, candidly stated that the accused himself had requested for being taken to the Magistrate for being searched but the Police had declared that it was not necessary. PW2, the senior Police Officer, also was examined in this case and he gave out the details about the raid and seizure as well as drawing of the Panchnama. In assailing the conviction, the learned Counsel for the appellant contended that the mandatory requirements of Section 50 of the NDPS Act have not been complied with inasmuch as notwithstanding the fact that the accused himself requested for being taken to the Magistrate for the purpose of search, the Police did not accede to the same and, therefore, the conviction is null and void.