VINODBHAI MANILAL SATHWARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant- Vinodbhai Manilal Sathwara has challenged the judgment and order dated 07.11.1998 passed in NDPS case No.6/97 by the learned Additional Sessions Judge, Sabarkantha, Himmatnarar. The appellant was convicted for the offences punishable under Section 8 [c] read with Section 17 of the Narcotic Drugs and Psychotropic Substances Act [ hereinafter referred to as the " NDPS Act " ] and sentenced to suffer R I for 10 years and to pay a fine of Rs.1 lakh, in default, to undergo further R I for one year.

(2.) The complainant- Ranvirshingh Vadanshingh Puwar PW 8 Exh.38, was at the relevant time serving as Police Inspector, Narcotic Cell, CID Crime, at Ahmedabad. On 30.9.1997, he received information from informant at about 12.10 p.m. that the appellant, the resident of Kumbharvas, Prantij district, Sabarkantha had kept illegal opium below his kitchen stair case near the wall. The complainant wrote down the said information and informed his superior officer i.e. Supdt. of Police. He also entered the said information in the register for the said purpose. He thereafter proceeded for Prantij with the other police officers namely Sub Inspector Mr.Khopade, Head constable Mr.Popatlal and head constable Mr.Bhurabhai, Police Constable Mr.Natubhai and two persons of S.R.P. They took a halt near Prantij at Sabar Hotel for the purpose of making arrangement for calling panchas. Police Constable Natubhai called one Hareshbhai Barot PW 1 Exh.12 and Samirbhai Chauhan PW 2 Exh.19 to act as punchas. A preliminary panchnama was prepared and thereafter the raiding party entered Prantij town and reached the house of the appellant. They introduced themselves to the appellant and informed regarding the purpose for which they had come. Before carrying out such formalities, the appellant was asked as to whether he would like to keep present the gazetted officer or a magistrate at the time of search. On being said "no " by the appellant, he was further asked as to whether he would like to search the person of the raiding party in presence of panchas. To that also, the appellant said "no" and stated that raiding party may carry out the search of his premises. The raiding party thereafter started search of the ground floor as well as the first floor of the house. However, nothing was recovered. On being asked about the kitchen, the appellant showed the kitchen situated in the southern side and in the western side of the kitchen, there was a wooden stair and behind this wooden stair, a plastic kerba was lying and between the kerba and the wall, the raiding party found a substance covered by a parrot green colour of paper kept in a white plastic bag. Taking out some substance from the white bag, and smelling the same, they noticed to be of opium smell. Thereafter the substance was weighed by the raiding party and it weighed 350 grams, Head Constable Popatlal was sent to bring three tin boxes from the pan shop. He brought three boxes of tobacco. 100 grams out of 350 grams was kept in one box and the box was thereafter covered with a paper and slip duly signed by the panchas was affixed on the said box. Thereafter a seal of the Police Inspector and Divisional Police Supdt., Gujarat State was affixed. In the second box, 100 grams opium was kept and in the third box 150 grams opium was kept. The same procedure was carried out in respect of remaining boxes. A B C mark was given to all the boxes respectively. Thereafter memo was issued by the Mamlatdar after giving a copy to the appellant and thereafter memo duly signed by the panches was given to the appellant and the appellant thereafter was arrested. Necessary panchnama to that effect Exh.32 was recorded on the spot. A complaint was thereafter registered against the appellant before the Prantij Police Station, which was registered as CR No.III 169/97. The complainant also informed the superior officer regarding the raid and arrest of the appellant.

(3.) Jyotindra Upadhyay, PW 11, who was at the relevant time serving as Police Inspector, Prantij took over the investigation and after completing the same, filed chargsheet against the appellant. The charge Exh.9 was framed against the appellant, to which he denied and claimed to be tried in his further statement under Section 313 of the Criminal Procedure Code. While denying involvement in the offence as alleged by the prosecution, he has stated that he is against prohibition and gambling activities, he totally denied his involvement. He has stated that his nephew is a bootlegger and because of the same, both are not in good terms. He has further stated that his nephew had given false information to the police and got him arrested at his [ nephew ] instance by the rival politician.