AKILKHAN MEHBOOBKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgement and order dated 24/12/1997 rendered by the learned Special Judge, Surat, in Sessions Case No. 289 of 1996, by which the appellants are convicted under Sections 8, 9, 10, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act' for short) and punished with R.I. for 10 years and a fine of Rs. 1 lac (Rupees One lac Only), in default to undergo R.I. for one year.

(2.) On 13/08/1996, Shri H.S. Ninama was serving as a Police Inspector at Salabatpura Police Station; when he was present in the Police Station, at about 3.30 p.m., he received an information that at `Akbar Sayeed-Na-Tekra', a person named Akilkhan Mehboobkhan Pathan and Merazbibi Jalilkhan Rehmankhan Pathan are possessing contraband substance, brown sugar, and are selling the same. Akilkhan procures the supply of brown sugar and Merazbibi assists in getting customers for the same. At present, they have received supply of brown sugar and that they have gone out and after coming back, they are likely to dispose of the same. Therefore, it was decided to take immediate steps. The said information was taken down in writing and an entry was made in the Station Diary, being Entry No. 20/1996, at 3.35 p.m. An intimation of this information was sent in a sealed cover to the Deputy Commissioner of Police (North Division). Thereafter, two police personnel, namely, Shantaram Baburao and Vasant Eknath, were sent for verification of the said information, who, on return, informed that the information was correct and that the accused are to return to `Akbar-Sayeed-Na-Tekra' and, therefore, immediate action is required. Therefore, Police Sub Inspector-Shri Jhabha, Police Sub Inspector Shri N.N. Chaudhary, Police Jamadar-Shri Vasantbhai, Shantarambhai, Babubhai, Laxmanlal, etc., were called. Jamadar-Babubhai was asked to call the panch witnesses. He called two persons, namely, Abdul Usman Gani and Jaswantbhai Lalawala, as panch witnesses. After having obtained consent of the panchas, requisite material for sealing, packing, batteries for light, etc. and showing the same to the panchas was taken and the same was kept in a tin box, the same was handed over to Shri Chaudhary. The panchas and the police personnel searched each other and did not find any objectionable. Thereafter, an entry was made in the Station Diary about starting for the raid, being Entry No. 21 of 1996. Copies of the said entry and the statements of constable Vasant Eknath and Shantaram Baburao were also sent to the Deputy Commissioner of Police for information. A preliminary panchnama was drawn and signatures of both the panchas were obtained. Thereafter, in the Government Jeep and two rickshaws, which were also searched by the panchas and nothing objectionable was found, parties started for raid via Bardoli Pitha, Reshamvad. The jeep was stopped near Rustampura Chowky, under a banyan tree. The jeep was sent to Rustampura Chowky. Thereafter, the panchas and the police personnel were explained that Akilkhan Pathan is wearing a white-lining shirt and a black colour pant, while Merazbibi is wearing yellow colour punjabi with a pink colour "odhani". The police personnel were positioned in the surrounding area. They were told that no sooner a signal is given, persons with the aforesaid description of clothes be surrounded. The signal was also explained to the police personnel. The two panchas with the Police Inspector had remained near the banyan tree. After about 45 minutes, a rickshaw came from `Della Mohalla' and the persons answering the aforesaid description alighted from the rickshaw; they were identified as accused; a signal was given; both the persons were stopped at a little distance. On enquiring their name, the man disclosed his name to be Akilkhan Mehboobkhan Pathan and the woman disclosed her name to be Merazbibi Jalilkhan Rehmankhan Pathan. They were told about the information received by the police party and that their search is to be carried out. It was also explained that Shri Ninama is the Police Inspector of Salabatpura Police Station and that if they want their search to be carried out in presence of any Magistrate or any Class-I Officer, the same can be arranged. They declined for the same and in the meantime, Merazbibi, tried to run away, but fell down. She was assisted by the lady Police Constable, Ashaben. At this juncture, in a Government vehicle, Assistant Commissioner of Police, Shri Christian, reached the place. He enquired as to whether anything is found. He was informed about the information. He was shown the two suspects and was informed about their search. Introduction of Shri Christian was given. It was conveyed that he is a Class-I Officer - Assistant Commissioner of Police, and whether the accused are having any objection if their search is carried out in his presence. The accused having expressed no objection, consent of Shri Christian to remain present during the search was obtained. The accused were told that if they have any substance like brown sugar, the same be handed over to the police party. Merazbibi gave her hand pouch of coffee colour with a flower print. In that hand pouch, a paper packet, rectangular in shape, with a pink colour rubber bend was found. On opening the same, a transparent plastic bag admeasuring 10 x 14 was found, containing light yellow colour powder. On weighting, it was found to be 7.700 gms. Merazbibi told that it was brown sugar. On enquiry as to whether the accused have any pass or permit for possessing the said brown sugar, they denied to have any. On personal search of Shri Akilkhan, from the pocket of his shirt, four small packets were found in a plastic bag, which contained small quantity of light yellow colour powder. It was not possible to weigh that powder. Thereafter, Akilkhan was also enquired as to whether he has any licence or permit to possess this narcotic drug like brown sugar, to which he replied in negative. Thereafter, keeping the paper and rubber bend in the hand pouch, the same was kept in a cloth bag. A slip containing the signatures of the police officers and panchas was placed in the cloth bag and the same was stitched. Thereafter, a slip containing the signatures of the panchas and police officers was affixed on the cloth bag, and was sealed, and it was given mark as Mark-A. Light yellow colour powder in the plastic bag was allowed to remain as it is and the same was kept in a transparent plastic box having blue colour cover, and in that, a slip containing signatures of the panchas and police officers was kept. The plastic box was closed with blue colour cover. Thereafter, the same was kept in a cloth bag. The cloth bag was stitched and sealed after placing a slip containing signatures of the police officers and panchas. It was given mark as Mark-B. Thereafter, four packets found from Akilkhan were allowed to remain in transparent plastic bags as it is. It was kept in a transparent plastic box and after placing a slip containing signatures of the police officers and panchas, the said plastic box was closed with a blue colour cover. It was then placed in a cloth bag. The cloth bag was stitched and sealed after placing the slip containing signatures of the police officers and panchas. The same was given mark as Mark-C. Thereafter, as personal search of Merazbibi was to be carried out, she was taken to Rustampura Police Chowky and on her search of person, nothing objectionable was found. The said search of person was carried out by a woman Police Constable-Ashaben. On further search of Akilkhan, Rs.170=00 were found from his pocket consisting of currency notes of different denomination of 100, 50 and 20. These currency notes were kept in a brown paper cover and were marked as Mark-D. Merazbibi was also told as to whether she would like to get the brown sugar weighed before any other person, to which she declined. Thereafter, the accused were arrested and were supplied reasons for their arrest. Merazbibi put her thumb impression. Merazbibi was also given a copy of seizure memo for the muddamal recovered from her, on which also the accused put her thumb impression. Whereas, Akilkhan was given a separate seizure memo for recovery of four packets of brown sugar and Rs. 170=00, a copy of the seizure memo was signed as a token of acknowledgement. He was also given grounds of arrest, an office copy of which was signed by him. After reading the panchnama before the panchas, it was signed by both the panchas, Police Inspector and Deputy Commissioner of Police, Shri Christian. The panchnama was over by about 9.45 p.m. Mr. Jhabha, Police Sub Inspector, filed an FIR in the presence of Shri H.S. Ninama, Police Inspector, and Shri Christian, Deputy Commissioner of Police, at Rustampura Police Chowky and Shri Christian and Shri Ninama also signed the same. Thereafter, both the accused, muddamal and all papers pertaining to the case were taken to Salabatpura Police Station. The same were handed over to the Police Station Officer, who in turn registered an offence, and a yadi was given to the Police Station Officer, which is produced at Exh.28. The investigation was handed over to PSI, Shri Jhabha. Shri Jhabha forwarded the muddamal to the Forensic Science Laboratory (`the FSL' for short), Ahmedabad. On receipt of the FSL report and on completion of the investigation, a chargesheet was filed.

(3.) The learned Judge explained to the accused the charge framed against them, and the accused, having denied the offence, were tried.