SURAJMAL KANAIYALAL SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant Surajmal Kanaiyalal Soni has challenged the conviction by the learned Additional Sessions Judge Vadodara for the offence punishable under Sec. 13. of the Narcotic Drugs & Psychotropic Substances Act 1985 (hereinafter referred to as N.D.P.S. Act) and sentence to rigorous imprisonment for 100 years and fine of Rs. 1 0 0 in default rigorous imprisonment for three years for being in illegal and unauthorised possession of 9 kilo 775 gms. opium worth Rs. 19 550 at 10.00 p.m. on 7/03/1988 at Bagikhana Road Vadodara on various factual and legal grounds that the opium was not recovered from the appellant and was recovered from other persons but they were allowed to go and the appellant is falsely implicated and that the various mandatory procedural provisions specified in Chapter V N. D. P. S. Act are not complied with which has prejudiced the appellant and has resulted into miscarriage of justice requiring the setting aside of the conviction.

(2.) The prosecution case against the appellant is that Police Inspector P. S. Patil of Navapura Police Station on information from his informant kept a watch alongwith his staff members nearby Kasam Dulas Dargah at Bagikhana Road Vadodara and at about 10.00 p.m. they saw the appellant proceeding in suspicious manner towards Polo ground. They apprehended him near Dargah and called two panch witnesses who were passing by and on being asked the name the appellant gave his name as Surajmal Kanaiyalal Soni and that he is resident of Bhesoda District Mansor. The appellant had one rexine bag and on search three bags were recovered from it. All the three bags were stitched with threads and on opening some portion of those bags the black soft substance was found and on taking smell it was found to be opium. One Police constable was sent and one person was brought with scales. On weighing it was found that one bag contained 3 kilo 700 gms second bag contained 3 kilo 50 gms. and third bag contained 3 kilo 025 gms. of opium. The appellant had no pass or permit. Some of the opium from each bag was taken out and 3 pellets weighing about 50 gms. were separately put in one plastic bag and that bag was sealed with slip bearing the signatures of the panch-witnesses and by a personal seal of the Police Inspector. Three bags recovered from the rexine bag were stitched and were sealed with slips bearing the signatures of the panch-witnesses and with the seals of the Police Inspector. Detailed panchnama was prepared there and muddamal opium was attached. The appellant alongwith the muddamal opium was taken to the Police Station and the Police Inspector Patil filed complaint Ex. 10. The Police Station Officer registered the offence and after that Police Inspector Patil carried on further investigation and recorded the statements of the members of the staff who were with him during the seizure operation. The muddamal samples were sent to the Chemical Analyser for chemical analyse through the D. C. Branch alongwith letter Ex. 11. Report Ex. 13 was received from the Forensic Science Laboratory. The appellant in the statement under Sec. 313 Criminal Procedure Code stated that he is falsely involved and on 5/03/1988 he had come to Baroda from Bombay and had put up in Aggrawal Guest House and one Kanchan was with him. In the afternoon they were just taking round in the city and at that time Vikram of Rajasthan who knew Kanchan met them and inquired about the place were they had put up and accompanied them and he also put up with them in the common room. The charges of Aggrawal Guest House being more they shifted to Poona Boarding House Salatwada on the next day. Vikram also accompanied them. On 7/03/1988 the appellant was standing at the trance of the gali and at that time three persons came there and inquired about Vikram and he told that Vikram must be inside the Guest house. They inquired from the boy working in the boarding house about Vikram and they were informed that Vikram had gone to take the dinner. They then inquired from the appellant as to how he knew Vikram. The appellant told that he did not know Vikram but his companion knew him. On inquiries the appellant further stated that he is resident of M.P. and had put up in a common room and had one bag with him. Those three people then verified the register of the guest house and waited for Vikram but Vikram did not turn up. They then told him to accompany them as they happened to be the C.I.D. Officers. They then took him to room No. 5 in Relief Hotel in a rickshaw. Two persons were sitting there and they had black rexine bag. He told that he did not know those two persons. One of them was having the name Karansing and opium was lying there. Another person was having the name Manohar. One packet of opium was recovered from Karansing and two packets of opium were recovered from Manohar. Those three policemen i.e. Dilip Prem and Mehboob then waited there for three hours. During that period they were threatening Manohar and Karan and subsequently some persons known to Manohar and Karan managed for money and therefore both of them were allowed to go and after that they demanded Rs. 20 0 from the appellant but the appellant could not manage. He had given the name of his relation S. N. Soni and subsequently of one Malik. They went there but money could not be arranged. Police Inspector Patil also came there and he also demanded money but the appellant could not manage and therefore Police Inspector Patil directed to file the case. He was then taken to Navapura Police Station and was kept in lock-up at Raopura Police station and was informed in the morning that opium was recovered from him.

(3.) The appellant examined D. W. 1 Rajesh Bhailalbhai Patel (Ex. 16 a clerk working in Poona Boarding House and D. W. 2 Foolsing Maganbhai Rathod (Ex. 18) a clerk of Baroda Central Jail to establish that he had put up at Poona Boarding House and that a rexine bag was with him when he was taken to jail as under trial prisoner.