ISMAIL MAHMAD SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal under section 374 of the Code of Criminal Procedure, 1973 challenging the judgment and conviction order dated 24.12.1998 recorded by the learned Addl.Sessions Judge, Valsad District camping at Valsad, in Special Case No.7/96 under which the learned trial Judge convicted the present appellant for offence punishable under section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to suffer R.I. for 12 years and directed payment of fine of Rupees One Lac. In default of payment of fine, the appellant was directed to undergo further imprisonment for one year. The facts of the case of the prosecution before the trial court may be briefly stated as follows:

(2.) Police Inspector, State Narcotic Cell, CID (Crime), Gujarat State, Ahmedabad, Mr N A Pathan is the informant and he had received an information that a person was selling narcotic drugs behind the railway cabin of Raichand Road at Navsari on 15.2.1996. Therefore, the said informant reduced the said information into writing and forwarded the same to Dy.Superintendent of Police. Thereafter, he called panchas and in the company of other police officers, went to the spot described as above. There it was found that right near the railway cabin, there was an electric pole being Pole No.320(K) and the present appellant was found sitting there by the side of the said electric pole. As soon as the police party reached the said spot, Mr Pathan introduced himself and stated to the appellant that as per the information received by him, the appellant was selling narcotic drug and, therefore, he was required to be searched. Mr Pathan also informed him that if he wanted to be searched in presence of a Gazetted Officer or a Magistrate, then appropriate arrangement would be made. However, the appellant agreed to be searched by Mr Pathan without the requirement of attendance of those officers. Therefore, the personal search of the appellant was carried out and it was noticed that 330 grams of charas was found from the person of the appellant. Same way, on personal search, an amount of Rs.350.00 was also found from the person of the appellant. Panchnama was drawn, muddamal article was seized, FIR was filed and crime was registered, investigation was undertaken and charge sheet was filed and on receipt of the charge sheet, it was registered as Special Case No.7/96.

(3.) The learned trial Judge framed charge at Exh.1 on 11.4.1997 for the aforesaid offence against the appellant. It was read over and explained to the appellant. He pleaded not guilty and, therefore, evidence was recorded and at the conclusion of the trial, further statement of the appellant was recorded. After hearing the arguments, the learned Judge found the appellant guilty for the aforesaid offence. He was heard on the point of quantum of punishment and thereafter punishment was inflicted on the appellant has aforesaid. Feeling aggrieved by the said judgment and conviction order of the trial court, the appellant had preferred this appeal before this court. It has been contended that the trial court has overlooked the fact that the provisions contained in section 50 have not been complied with. It has further been contended that even provisions contained in sections 41 and 42 have also not been complied with. It is also stated by the appellant that the panch witnesses were known to the police and, therefore, their evidence could not have been relied upon by the trial court. That on the whole, the judgment and conviction order recorded by the trial court are illegal and erroneous and deserve to be set aside. The appellant, therefore, prays that the present appeal be allowed, the judgment and conviction order be set aside and the appellant be held to be not guilty and be acquitted of the aforesaid offence.