KORI DHIRUBHAI POPATBHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE challenge in this appeal is to the judgment and order dated 15.12.2007 rendered by learned Addl.Sessions Judge, Fast Track Court No.4, Bhavnagar camp at Botad in Special (NDPS) Case No.2 of 2006 whereby the appellant herein, who was original accused in the aforementioned special case came to be convicted for the offence punishable under Sections 20(b)(i), 22 r/w.Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short) and was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25000/ -, and in default of payment of fine, simple imprisonment for one year.

(2.) THE prosecution case in nutshell is that Mr.G.B.Bambhaniya, PSI, Special Operation Group, Bhavnagar on 19.10.2005, received a secret information that the appellant accused herein, who has a residential house at Village Chiroda, Taluka Gadhda, District Bhavnagar, used to cultivate 'Ganja' plants in his residential premises. The secret information which was received was reduced into writing and Mr.Bambhaniya informed his higher officer regarding the information. Mr.Bambhaniya thereafter called two panchas and informed both the panchas and the police personnel, who were present in his office, about the secret information and about the proposed raid. After completing first part of the raid panchnama, Mr.Bambhaniya along with two panchas and police personnel, went to the place of information and when they reached near the house of the accused at Village Chiroda, the accused was found present in the house. The accused was informed about the secret information regarding the 'Ganja' and was further informed that search was required to be conducted in his house and in that process, if he desired to keep either a Magistrate or a Gazetted Officer present, then he has a right to claim it, but, the accused did not opt for the same and permitted the PSI, Mr.Bambhaniya and the panchas and the members of the raiding party to conduct the search. At the time of conducting search, it was found that the house consisted of two rooms. In one room, nothing objectionable came to be found, but when they entered into the second room, which was admeasuring 11 ft. x 12 ft., having no roof and there was no floor tiles in the room, and they found a standing 'Ganja' plant approximately 10 ft. in height. FSL Officer was called at the place, and upon spot analysis, the plant was reported to be of 'Ganja'. The plant was thereafter uprooted and the same was weighing about 1 kg and 800 gms. Necessary samples were prepared and the same were packed and sealed, as required. Certain documents showing the ownership and possession of the premises of the accused came to be collected. Detailed seizure panchnama came to be prepared. In connection with this offence, Mr.G.B.Bambhaniya, PSI, lodged FIR, which came to be registered. During the course of investigation, statements of material witnesses came to be recorded. Muddamal sample came to be forwarded to FSL and the report of the FSL was collected. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the Court of learned Judicial Magistrate (F.C.), Gadhda. Since the offence is exclusively triable by the Special Court, the learned JMFC transmitted the case to the Court of learned Addl.Sessions Judge, Bhavnagar camp at Botad, which was registered as Special (NDPS) Case No.2 of 2006.

(3.) THE trial Court framed charge against the accused at Exh.5 to which he did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral evidence and examined 9 witnesses, detailed in paragraph 4 in the impugned judgment. The prosecution relied upon 22 documents, detailed in paragraph 5 in the impugned judgment. After the prosecution concluded its oral evidence, the trial Court recorded further statement of the accused u/s.313 of the Code of Criminal Procedure, and the accused in his further statement denied generally all the incriminating circumstances emerged from the evidence adduced by the prosecution and put to him by the trial Court and stated that he was falsely implicated in this case. The trial Court after examining and appreciating the evidence adduced by the prosecution and considering the submissions advanced on behalf of both the sides, came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt and, ultimately, recorded the conviction of the accused for the offences punishable 20(b)(i), 22 r/w. Section 8 of the NDPS Act and awarded the sentenced as herein above referred to in this appeal. Hence, the original accused has preferred this appeal.