PRATAPBHAI SURJIBHAI DODIYAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE two appeals arise out of a judgment and order dated 22.9.2005, rendered by Special Court, Gandhinagar, in Special Case (NDPS) No. 3 of 2004, convicting the Appellants for the offences punishable under Sections 8(C), 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act" for short). For the first offence, they were sentenced to undergo RI for 10 years and to pay fine of Rs. 1,00,000/ - and, in default, to undergo RI for two years and for the second offence, they were sentenced to undergo RI for 10 years and to pay fine of Rs. 1,00,000/ - and in default, to undergo RI for two years. Both the sentences were ordered to run concurrently.

(2.) AS per the prosecution case, the Appellants were intercepted on 21st August,2004 at about 10.45 a.m. at Gandhinagar - Chiloda circle, on Gandhinagar - Himmatnagar Road, near Rajasthani Dhaba Pandit Jaipurwala's Hotel. Accused No. 1 Pratapbhai Surjibhai Dodiyar was found to be in possession of 766 grams of brown sugar whereas accused No. 2 Aasif Shabbirbhai Bugadwala was found to be in possession of 205 grams of brown sugar. The contraband was seized, samples were drawn and were sent to FSL for analysis. The seized contraband and samples were properly sealed at the time of seizure. The accused were arrested and charge sheeted. Before the Special Court, charge was framed against them at Exhibit -10 for the offences punishable under Sections 8(C), 21 and 29 of the NDPS Act, to which they pleaded not guilty and claimed to be tried. At the end of trial, the Special Court came to the conclusion that the prosecution was successful in proving the case that both the accused were in possession of contraband brown sugar in the quantity as stated here -in -above and, therefore, after recording their statements under Section 313 of the Code of Criminal Procedure and hearing their arguments, the Special Court delivered the judgment holding them guilty and sentensing them as stated here -in -above.

(3.) LEARNED Advocate Mr. Rajesh M. Agrawal, appearing for the Appellants pressed both these appeals mainly on the ground that the contraband seized, even as per the prosecution case, was brown sugar and FSL report only certifies it to be brown sugar. FSL has not undertaken the purity test to suggest the exact quantity of contraband found in the quantity of powder seized and, therefore, the Appellants would be entitled to the benefit available to them in light of the decision of the Apex Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, as, 2008 5 SCC 161. The rest of the contentions raised are not pressed by the learned Advocate appearing for the Appellants.