STATE OF GUJARAT Vs. ABDULRASID IBRAHIM MANSURI

JUDGEMENT

(1.) Can a person in possession and transporting in an autorickshaw without any passenger in it in a public place 105.700kgs. of Cannabis Sativa (charas) worth Rs. 5 29 0 be held to be in unconcious possession or without knowledge of the contents in the packets ? Were the provisions of Sec. 42 Narcotic Drugs & Psychotro- pic Substances Act 1985 (hereinafter referred to as `N.D.P.S. Act) required to be followed or the provisions under Sec. 43 of the N.D.P.S. Act are applicable in case of seizure in public place ? Are provisions fo Chapter V N.D.P.S. Act mandatory the non-compliance of which will vitiate investigation trial of conviction ipso facto or miscarriage of justice or prejudice to the accused requited to be established ? These are some of the main points requiring consideration in this acquittal appeal preferred by the State against the respondent.

(2.) Additional City Sessions Judge on appreciation of the evidence held that it is amply made out from the evidence on record that the muddamal articles found from the possession of the respondent and seized undes the panchnama (Exhibit 7) received in sealed condition by the Forensic Science Laboratory on 15-1-1988 happened to be analysed by the Biological Division are found to contain botanical material of Cannabis Sativa (charas) and as per the opinion (Exhibit 12) the contents of all the 11 bags are found to contain charas. The learned trial Judge also held that the identity of the muddamal articles found from the possession of the respondent and analysed by the Forensic Science Laboratory is also duly established by the prosecution and that part of the prosecution case has not been seriously challenged on behalf of the defence. As recorded by the learned trial Judge the only aspect that was seriously pressed before him was that the prosecution has not satisfactorily proved the aspect of possession much less conscious possession and knowledge on the part of the accused who happened to be the driver of the autorickshaw from which four gunny bags were found wherein there were 11 packets the contents of which weighed about 105.700 kgs. in the form of balls of uneven shape and size which according to the analysis and report of the Forensic Science Laboratory happened to be narcotic drugs viz. Cannabis Sativa Learned trial Judge also observed that the mandatory provisions of Sec. 42 N.D.P.S. Act were not complied with as the information received by the Police Inspector Shri P. M. Vishen was not reduced into writing and he had not sent the copy of the information to the immediate superior Officer within the requisite time. It appears from the observation that the learned trial Judge referred the judgment in the case of HAKAM SINGH V. UNION TERRITORY 1988 CRI.L J 528 but did not clearly observe that the mandatory provisions are violated and therefore the respondent-accused Was entitled to acquittal. The learned trial Judge ultimately observed that for want of mens rea and intention and/or knowledge on the part of the respondent-accused the offences punishable under Secs. 20(b)(ii) and 25 of N.D.P.S. Act and Sec. 66(1)(b) of the Bombay Prohibition Act cannot be said to have been duly brought home beyond all reasonable doubt against the respondent-accused and in view of the nature of the evidence on record the respondentaccused is entitled to the benefit of doubt. The learned trial Judge accordingly extended the benefit of doubt to the respondent and acquitted So far as the finding that the respondent was carrying four gunny bags in the rickshaw without any passenger and the bags contained 11 packets of Cannabis Sativa (charas) having a total weight of 105.700 kgs. and worth Rs. 5 29 0 is concerned we agree with the learned trial Judge as that is borne out from the evidence on record and therefor we do not think that it is necessary to discuss the evidence extensively. We will however narrate in short the prosecution case and discuss evidence.

(3.) Police Inspector Shri P. M. Vishen was the Inspector in charge of Dariapur Police Station and on 12/01/1988 at about 4.00 p.m. Police Constable Navalsinh informed that charas of one Iqubal Sayed husen Bappu was to he transported to Shahpur in an autorickshaw and therefore he called the Police Sub-Inspector Vaghela Police SubInspector Vania and other Police Constables and all of them along with the informent Police Constable Navalsinh took position on the main road from Delhi Darwaja Circle to Shahpur and kept watch. At about 5.15 p.m. the rickshaw was sighted proceeding from Delhi Darwaja to Shahpur and in that rickshaw there was no passenger but on the foot-board in the rickshaw there were gunny bags. On Police Constable Navalsinh giving signal the rickshaw was intercepted and all the Police Officers surrounded it. As people collected the rickshaw was taken to Shahpur Police Chowky at a distance of 200 to 240 paces away from there and two panch-witness were also called. Respondent Abdulrased was driving the rickshaw No. GTH 3003. All the four gunny bags which were in the rickshaw were removed from the rickshaw in presence of the panches to the Police Chowky and they were opened. There were 11 packets in four gunny bags. In the plastic bags there were charas balls and the packets were covered with newspaper. 10 pockets contained about 10 kgs. charas each and one packet-contained 5.700 kgs. The value of the charas was assessed at Rs.5 29 0 Photographs were taken by the Government Photographer. The respondent was asked about the licence for keeping charas but be had no licence. On personal search nothing was found from the respondent. In the rickshaw there was nothing else except the four gunny bags. The packets containing charas were wrapped with brown paper tied with thread paper slip bearing signatures of panches were fixed and sealed with the seal of the Dariapur Police Inspector. The bags in which the above said packets were kept were also sealed with the paper bearing the signature of panch-witnesses and seal of Dariapur Police Station. A detailed panchnama was prepared there and the P.S.I lodged complaint with the Dariapur Police Station. The respondent was arrested and complaint panchnama and muddamal along with the respondent were Sent to the Dariapur Police Station along with Police Sub-Inspector Vaghela. The letter addressed to the Forensic Science Laboratory was Written by the P.S.I. and that was also sent to the Police Station. The Police Station Officer Dariapur Police Station registered the offence as Prohibition Crime No. 31 of 1988 and further investigation was carried out by the Police Sub-Inspector Shri Vaghela. During the course of the investigation P. S. I. Vaghela came to know that Iqubal Sayedhusen and Meheboobkhan Rasulkhan were also involved in the offence and the charas belonged to Iqubal Sayedhusen and therefore he tried to find them but they were absconding and therefore they were shown as absconding accused in the chargesheet P. S. I. Vaghela personally carried the muddamal bags to the Forensic Science Laboratory and handed over the muddamal to the Laboratory on 15/01/1988 On chemical and biological tests the Chemical Analyser and the Director of the Forensic Science Laboratory found that all the 11 packets contained Cannabis Sativa (charas). The Senior Scientific Assistant of the Forensic Science Laboratory and the Assistant Chemical Examiner Government of Gujarat vide their reports stated that the contents of all the exhibits were found to be charas. The biological Division of the Forensic Science Laboratory also carriedout test and in the report slated that the result of the analysis is that the exhibits contained botanical material of Cannabis Sativa (charas).