STATE OF GUJARAT Vs. GAUTAM KALUBHAI KOLI PATEL

JUDGEMENT

(1.) Narcotic Drugs and Psychotropic Substances Act, 1985 - S. 8, proviso thereof - Notification with respect to prohibition of GANJA was admittedly issued on 30-5-89 and the date for the purpose was specified to be 13-12-89 -On the date of the occurrence, i.e. on 19-2-87, there was no prohibition against GANJA under the NDPS Act Hence provisions thereof would not be applicable in the instant case.

(2.) The prosecution case may be summarised thus: One Police Sub-Inspector (PSI) named N. M. Solanki of the Maninagar Police Station was on his duty of patrolling in the company of some 4 police constables. He received information that one person travelling by a train from the Bombay side was to bring ganja in his suitcase and handbag. Thereupon he summoned two persons to act as panch witnesses. They were near the Maninagar Railway station and stood by the Northern railway crossing. Around 8 p.m. a train from the Bombay side arrived at the Maninagar railway station. Several persons alighted there from. One person was found carrying one suitcase and one handbag and was found coming out from the Northern side railway crossing. He was taken aback at the sight of the PSI and his companion constables. That person was detained and his suitcase and handbag were searched. Some ganja was found in the suitcase and 3 packets of ganja were found from the handbag. His person was also searched. An amount of Rs. 70 was recovered from his person. The ganja and the amount were seized and sealed in presence of the two panchas. A panchnama of the proceedings was drawn. The person and the muddamal were carried to the Maninagar police station. The PSI gave his complaint of the incident. The person found with the muddamal ganja was detained in custody. The muddamal articles together with sample drawn therefrom were handed over to the police officer in charge of the Maninagar police station. The samples were sent to the chemical analyser for analysis and report. They were found to be samples of ganja. The necessary charge-sheet was submitted to the Chief Metropolitan Magistrate at Ahmedabad. The accused was charged with the offences punishable under Sections 66(1)(b), 65(e) and (f) of the Bombay Prohibition Act, 1949 (the 'BP Act' for brief) and Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the 'NDPS Act' for brief). Since the case was triable by the Court of Sessions, it was committed to the City Sessions Court at Ahmedabad for trial. It came to be registered as Sessions Case No. 402 of 1988. It appears to have been assigned to the learned Additional Sessions Judge of Court No. 20 for trial. The charge against the accused was framed on 20th December .1988. He did not plead guilty to the charge. He was therefore tried. After recording the prosecution evidence, his further statement under Section 313 of the Criminal Procedure Code, 1973 (the 'Cr. P.C. for brief) was recorded. His defence was that he was falsely involved in the case. After hearing rival submissions urged before him, the learned Additional Sessions Judge of Court No. 20 of the City Sessions Court at Ahmedabad, by his judgment and order passed on 20th February 1992 in Sessions Case No. 402 of 1988, acquitted the accused of the offences with which he was charged. Aggrieved thereby, the State of Gujarat has preferred this appeal before this Court questioning the correctness of the judgment and order of acquittal passed by the learned Additional Sessions Judge.

(3.) So far as the second ground is concerned, Shri Shelat for the appellant has submitted that the incident occurred on 19th February 1987 and the notification relied on by the learned trial Judge was issued on 15th June 1987, that is, nearly 4 months after the occurrence of the incident and that notification could not have held the field for the purpose of deciding the competence or otherwise of the investigating officer. We think that it is not necessary to examine this submission in view of the fact that the NDPS Act it self would not be applicable in views of proviso to Section 8 thereof. Proviso to Section 8 thereof reads thus: