SORABKHAN GANDHKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants before us and two other persons were charged for offences punishable under Ss. 8(c), 20(2), 21, 27, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) before the Court of Additional Sessions Judge, Ahmedabad in Sessions Case No. 53 of 1993. Learned Sessions Judge after trial came to the conclusion that the prosecution has failed to establish its case against Accused 3 and 4 and hence acquitted them while it found the case against Accused 1 and 2 who are the appellants before us established by the prosecution, hence convicted them u/s. 20(b)(ii) read with Sec. 2(iii)(a) and also read with Sec. 29 of the Act and sentenced them to undergo rigorous imprisonment for a period of 10 years and imposed a fine of Rs. 1,00,000.00 (Rupees one lakh only), in default of payment of fine the appellants were further directed to undergo simple imprisonment for a period of one year. An appeal filed against the said judgment by the convicted accused before the High Court of Gujarat at Ahmedabad came to be dismissed. Against the said judgment of the High Court the two appellants are before us.

(2.) Ms. Ranjana Narayan, learned amicus curiae appearing for the appellants contended that the courts below have failed to consider the effect of Ss. 42 and 50 of the Act, non-compliance with which has vitiated the search and seizure made from the accused persons, therefore, the appellants are entitled to acquittal. She also contended that the prosecution case has not been supported by any of the independent witnesses. Therefore the courts below ought not to have based a conviction on the basis of police witnesses only.

(3.) She alternatively contended that at any rate assuming that the prosecution has established against A-1, the same cannot be said of A-2 because the prosecution has not led any evidence to show the involvement of A-2 in carrying the narcotic by A-1.