DILIP CHIMANLAL SHIKARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 1.7.1998 passed by the learned Additional City Sessions Judge, Ahmedabad, convicting the appellant of the offence punishable under Section 21 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" or "the Act") sentencing him to ten years RI with a fine of Rs.1,00,000/-, in default RI for one year.

(2.) The appellant was charged with the aforesaid offence on the basis that on 4.8.1997 at about 6.30 PM the appellant was found to be in possession of 3100 ml.grms. (i.e. 3.100 grms.) of brown sugar near his house in Mahendi Kuva Lakhaji Kunwarji's Chawl in Shahpur area of Ahmedabad, without any pass, permit or license.

(3.) The prosecution case was that Police Inspector Mr NK Chudasama had received, at about 3.00 PM on 4.8.1997, information that the appellant was engaged in the business of selling narcotic drugs on the otta of his own house at the aforesaid chawl. The Police Inspector made an entry to that effect in the station diary and conveyed the information to his superior officer. Two panchas were called at 3.30 PM and a preliminary panchnama was made. The police party and the panchas went near the house of the appellant and searched the person of the accused after informing him that he could have the search carried in presence of a gazetted officer or a Magistrate, to which the appellant expressed his willingness to be searched by PI Mr Chudasama. On such a search, 28 small packets containing powder were found from the right side pocket of the appellant's trousers. Upon weighing the total quantity of the powder contained in those small 28 packets, it weighed 3100 ml.grms (i.e. 3.100 grms) nett. The weight of the 28 small packets including the powder was 3800 ml.grms. (i.e. 3.800 grms.). The powder seized from the appellant was sent for the Forensic Science Laboratory report and it was found to be containing Morphine, Diacetylmorphine (Heroin), 6-Mono Acetyle Morphine, Codeine, Acetyl Codeine, Papaverine, Thienyl and the nett weight was found to be 3.100 grms. Alongwith those small packets of powder, the police also seized a pipe for smoking brown sugar, one cigarette packet of Cavander cigarettes containing one cigarette. The said articles were also seized and produced as muddamal articles. After the aforesaid search of the person of the appellant, the police also carried out the search of the appellant's residence containing one room admeasuring 10 ft. x 10 ft. The said search did not yield any narcotic drug or psychotropic substance, but the ration card was found which contained his name and the names of his family members. The panchnama was drawn and the accused was arrested on the same day i.e. on 4.8.1997. During the course of interrogation, the appellant herein revealed that he had purchased the materials seized from him from one Husein Miya Riaz Miya, who was also arrested and remanded to judicial custody. After completing the investigation, the police submitted the chargesheet before the Court against both the accused persons. However, at the time of framing the charge, accused No.2 submitted application dated 2.12.1997 for discharge and the learned Additional City Sessions Judge by order dated 9.12.1997 granted the said application on the ground that since there was no material recovered from accused No.2, the charge could not be framed merely on the basis of a statement of the co-accused, in view of the provisions of Section 25 of the Indian Evidence Act. As far as accused No.1 (appellant herein) is concerned, the charge was framed against him and he pleased not guilty.