IQBALKHAN AYUBKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants (original accused nos. 1 to 5) of Sessions Case No.117 of 1998 have filed these appeals under section 374 of the Code of Criminal Procedure against the common judgment and order dated 10.3.1999 passed by the learned Addl. City Sessions Judge, Court No.10, Ahmedabad convicting accused for offences punishable under sections 20(b) (ii) read with section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing each of the accused to suffer R.I. for ten years and to pay a fine of Rs. 1 lac, in default, to undergo further R.I. for one year. It may be stated that Firozabibi who is shown as accused no.6 in the judgment, is the accused in Sessions Case No. 321 of 1998. Both the Sessions Cases were tried together and by common judgment, the said Firozabibi was acquitted.

(2.) The facts giving rise to the prosecution case may be briefly stated as under: On 12.1.1998 at about 23.55 hours, Raisinh Shivubha Gohil, who at the relevanttime was serving as Police Inspector, Dariapur Police Station, received written information from Police Constable Balvantsinh. He entered the said information in Station Diary Ex.60 vide Item No. 29. He contacted Assistant Commissioner of Police through mobile and conveyed the information received by him. The Asstt.Commissioner of Police Mr. Sadhwani informed him that he was coming at the police station.In the meantime, PI Gohil prepared a written report and enclosed the copy of the information and kept it in a sealed cover. ACP entered the chamber of PI Gohil at about 0.5 hours. PI Gohil obtained signature of ACP in Despatch Book and handed over sealed cover to him and also made necessary entry in the Station Diary. Police Constable Surendrasinh was thereafter sent to call panchas. The panchas were thereafter read over the information received by PI Gohil. Preliminary panchanama Ex. 147 was drawn at the police station duly signed by the panchas as well as PI Gohil and ACP Mr. Sadhwani. The raiding party including panchas as well as ACP and other staff members thereafter proceeded towards Sultan Maholla. After entering into Khajuri street, they entered yellow colour building situated near electric pole. After climbing steps, they entered the room and saw six persons sitting there. They were made to sit in the same position. However, one person tried to escape from the western door leading to gallary. He jumped from the gallary and fell down on tin sheet. After causing some damage to the tin sheet, he fell down on the ground. Head Constable Rambhai and Police Constable Abdul immediately caught hold of the said person. The blood was oozing out from the head of that person. On being inquired about him, he disclosed his name to be Rameshchandra Maneklal, A5. On being inquired about the names of the persons in the room, they disclosed their Iqbalkhan, A1, Firozkhan Mahmad, A2, Aslamkhan, A3 and Abdul Hamid,A4. One boy Shahnavaz Khan Alamkhan was also present in the room. PI Gohil thereafter informed those persons in writing as to whether they would like to be searched in presence of a Gazetted Officer or an Executive Magistrate and obtained their signatures and the signatures of panchas on the said writing at Ex.21. All the accused were given separate copy of Ex. 21. The accused did not show any inclination to call either a Gazetted Officer or Magistrate at the time of search. Those persons were also informed about the information received by PI Gohil. The search of A5 was carried out first in point of time. From the right pocket of his pant, the raiding party recovered smoking pipe. The same was seized and thereafter wrapped in a Khakhi paper and put in a cover. The cover was thereafter closed. The slips containing signatures of PI Gohil as well as panchas were affixed by applying sealing wax bearing the name of PI Dariapur. A5 was thereafter sent to Civil Hospital by police for the purpose of treatment. From the search of A1, from his right pocket of pant, plastic bags containing brown sugar were recovered. Head Constable Mavsinh Bhimsinh was sent for calling goldsmith. On searching left pocket of pant of A1, currency notes of Rs. 1240/- were also recovered. In the meantime, goldsmith came who weighed the said plastic bags which were found to be weighing 40 gms. 500 m.gms. The entire powder of brown sugar was thereafter taken out from the plastic bags and again weighed and it was found to be 35 gms. Thereafter, the powder was packed in a plastic bag and the same was closed and put into Khakhi cover and the same was tied with thread. The slips containing signatures of panchas as well as complainant were affixed by applying seal bearing the same description. 19.12.2003 Thereafter search of A3 was carried out and currency notes of Rs.200/- and a smoking pipe were recovered.They were attached under panchanama. On making search of A4, an amount of Rs. 150/- and a smoking pipe were recovered. They were also attached under panchanama. From child accused Shahnavaz, one note book and amount of Rs. 14,300/- were recovered. One white metal box containing scale, two scissors, two spoons, two other scales, 5 gram weight, coin of 25 paise, rubber tags, plastic bags, stainless steel bowl having some powder were also attached. Over and above the same, one cigarrette butt, burnt silver foil, match sticks were also attached. The accused were given seizure memo. In the meantime, A5 returned from hospital after taking treatment. The raiding party thereafter went to police station. The complainant gave complaint at Ex.25. PSI was handed over complaint, report under section 157, panchanama, muddamal and the accused. The accused were thereafter arrested. The result of the raid was sent to the higher officer. The investigation was thereafter handed over to 2nd PI Mr. M.A.Chauhan. Mr. Chauhan sent muddamal samples for analysis to FSL. After obtaining FSL report, chargesheet was filed against the accused.

(3.) The learned Trial Judge framed charge at Ex.2. The accused pleaded not guilty to the same and claimed to be tried.