PIRUBHAI NOORBHAI SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant (original accused no. 1 and 3), in this appeal, have challenged the judgment and order dated 17.12.1998 passed in Sessions Case No. 94 of 1993 by the learned Addl. City Sessions Judge, Ahmedabad. The learned judge, at the end of the trial, convicted the appellants for offence punishable under section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced them to suffer R.I. for ten years and to pay a fine of Rs. 1 lac, in default, to undergo R.I. for one year. As far as original accused no.2 is concerned, according to the learned judge, his case fell under section 27 of the Act as small quantity of narcotic substance was found from his possession which was intended for his personal consumption and not for sale. He, therefore, gave benefit under section 27 of the Act to the original accused no.2 and sentenced him to pay a fine of Rs. 1500.00, in default, to undergo imprisonment a prescribed under the law.

(2.) The prosecution case can briefly be stated as under: Police Constable Narendrasinh Vijaysinh, PW 3 Ex. 19 of Madhupura Police Station, while performing his duties on 12.12.1992 at S.K.Lokhandwala Communal Point, received a secret information in the morning from the secret informant that " one person, since last 4 /5 days, between 9.15 a.m. and10.45 p.m., sells 'padikis' (very small pouch) of opium, charas or brown sugar, outside Prem Darwaja, Dariapur." The informant had shown the accused person to Police Constable Narendrasinh from distance. PSI M.S.Patel, PW 7 Ex. 15 and PI B.S.Shukla, PW 4 Ex. 21, while on patrolling, came to Lokhandwala compound in the evening. Narendrasinh sent the aforesaid secret information to them. Narendrasinh made a note of receipt of secret information vide Ex. 68. Thereafter, Narendrasinh, PSI Mr. Patel and Mr. Shukla went to Madhupura Police Station and reduced the said information in writing in the station diary at Madhupura Police Station vide Ex. 37. The said information was conveyed to Police Superintendent on telephone and thereafter necessary arrangements were made for the raid. Panchas were called and statement of Narendrasinh was recorded by PSI Mr. Patel. Constable Bharatkumar was asked to call goldsmith to weigh the substance if any found. Thereafter, PSI Patel, PI Shukla, Head Constable Fatesinh, Constable Narendrasinh, Lady Constable Anuben, Constable Udaykumar proceeded for raid from Madhupura Police Station. When they came near Prem Darwaja chowky, near Bhagwati Mill Compound footpath, Constable Narendrasinh identified the persons from distance. Two accused persons were exchanging something and at that relevant point of time, the raid was carried out and two accused persons were caught hold of. On interrogation during the raid, it was found that one of the accused persons was Pirubhai Shaikh, the appellant no.1 and the second person was Bharatkumar Darbar, the accused no.2. Before carrying out physical search, the accused persons were asked as to whether they wanted to be searched in presence of a Magistrate or not. Vide Ex.. 56 and 57, both the accused persons were given option to be searched in presence of a Magistrate. However, the said option was not availed of by the accused and, therefore, A/1 and A/2 were searched in presence of PI Shukla who was a gazetted officer and the panchas. During search of the accused persons, five small 'padikis' were found from the possession of A/2. During raid, one 'padiki' was opened and brown sugar was found therein. Therefore, A/1 was further interrogated. During interrogation of accused persons, further raid was continued as police went to corner of Vaghari Vas, near Ray Basera School. There, a woman, appellant no.2 (original accused no.3) sitting on the footpath, on seeing the police, tried to run away. However, she was caught hold by woman constable Anuben. She carried out the search of A/3 and four small 'padikis' were found from the pocket of her frock. All the accused were taken to Prem Darwaja police chowky. Meanwhile, goldsmith Maheshkumar, PW 1 Ex. 11 and FSL Expert Pathak came there. Maheshkumar weighed the 'padiki'. One padiki was of 6 mg. The weigh of all padiki was found to be 5 grams with substance therein. FSL Expert Pathak carried out chemical test and it was found that it was a narcotic substance in the padikis. All the padikis recovered from the accused were marked from 1 to 10. The panchanama was carried out in presence of panchas and all padikis seized were sealed in a tin and seizure memo was prepared at Ex. 52. The accused were arrested for offence punishable under the Act and arrest memo in respect thereof was made at Ex. 53. PSI Patel thereafter lodged the complaint at Ex. 54. Muddamal seized from the accused in sealed condition was handed over to PSO John to be put in the safe custody of police station. Ex.55 is the report to PSO to register the offence. On 14.2.1992, the muddamal seized from the accused was sent to FSL through constable Narendrasinh with a forwarding note Ex. 59. A yadi sending muddamal to FSL and a letter addressed to Magistrate is also produced by the prosecution at Ex. 60. The prosecution also produced FSL receipt at Ex. 62 and FSL report at Ex. 63. On getting positive report from the FSL Ex. 63, chargesheet was filed against all the accused.

(3.) Charge Ex. 2 was framed against the accused to which they pleaded not guilty and claimed to be tried. The prosecution, in order to bring home the charge levelled against the accused, examined Maheshkumar Soni, a goldsmith, PW 1 Ex. 11, Chogaji Kasturji, a panch, PW 2 Ex.13, Narendrainh Vijaysinh, PW 3 Ex.19, Bharatkumar S. Shukla, PI, PW 4 Ex. 21, John Phillip, PSO PW 5 Ex. 34, Jagatsinh Madhavsinh, PW 6 Ex. 43, MS Patel, PSI, PW 7 Ex. 50, the complainant. Over and above the oral testimony, the prosecution has also relied upon documentary evidence in the form of complaint Ex. 54, report to register the offence Ex. 55, seizure panchanama Ex.15, note of receiving secret information Ex. 68, statement/ option given to all the accused vide Ex. 56 to 58 respectively, seizure memo Ex. 52, yadi calling FSL Expert Ex. 51, letter to Magistrate asking permission to send muddamal to FSL, letter of intimation of arrest of the accused to the Sub-Magistrate at Ex. 61, despatch letter to FSL Ex. 59, FSL receipt receiving muddamal Ex. 62, FSL report Ex. 63, entry of secret information made in the station diary Ex. 37.