STATE OF GUJARAT Vs. AAMIN ABDULREHMAN POCHA

JUDGEMENT

(1.) THIS appeal preferred by the appellant State of Gujarat, is directed against the judgment and order dated 19.12.1992, passed by the learned Sessions Judge, Panchmahals, in Sessions Case No.161 of 1990, whereby the respondent accused has been acquitted of the charge under Section 8(2), read with Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the NDPS Act for short).

(2.) BRIEFLY stated, the case of the prosecution is that on 04.06.1990, PW -3, Athabhai Laljibhai Chaudhary, who was serving as Police Sub Inspector in Shahera Police Station at the relevant point of time, received secret information to the effect that the respondent has kept Ganja at his house. After receiving such information PW -3, accompanied by Head Constable Himmatsinh Laxmansinh, Head Constable Jethalal Somalal, Police Constable Bapusinh Ramjibhai, Police Constable Mansukhbhai Rumalbhai, etc., went to Holi Chakla Chowk. Two Panch witnesses were called and the necessary procedure was explained to them. The raiding party, accompanied by the Panch witnesses, then went to the house of the respondent, situated opposite Alankar Paan House. They found the respondent present at his house. The sitting room of the house was located in the front of the house. There was an iron bed on the western side of the room near the wall, on which there was a mattress. Under the bed, there was a gunny bag, under which a Khakhi -coloured box of Monaco biscuits was concealed. The box was taken out in the presence of Panch witnesses. Upon opening the cardboard lid, it was found that it contained three yellow plastic bags. Upon opening the three plastic bags, they were found to contain Ganja. The contraband was weighed in the presence of Panch witnesses, and its weight was found to be 1 kilogram and 250 grams. The market value of the Ganja was approximately Rs.1,375/ -. The respondent could not produce any pass or permit authorising him to keep Ganja at his house. About 100 grams of Ganja was taken out as a sample from the plastic bags, and put into another plastic bag, which was wrapped in paper. Slips containing the signatures of the Panch witnesses were placed upon the sample, which was wrapped in paper, tied and taken into custody. The remaining contraband in the three yellow plastic bags, was placed in the box, which was tied with a string and sealed with the seal of the PSI Shahera. A Panchnama regarding the above procedure was then prepared and the respondent came to be arrested. The contraband was sent for analysis to the Forensic Science Laboratory, Ahmedabad, which opined that the substance sent for examination was Ganja. Investigation into the offence commenced. At the end of the investigation, as sufficient incriminating evidence was found against the accused, a Chargesheet came to be filed against him in the Court of the learned Judicial Magistrate, First Class, Lunawada. The learned Magistrate committed the case to the Sessions Court. The Charge was framed against the accused, which was read over and explained to him. The accused denied his guilt and claimed to be tried. After the recording of the evidence of the prosecution witnesses was over, the incriminating allegations emerging therefrom were put to the accused. The defence of the accused was that of denial. In support of its case, the prosecution has examined only three witnesses and produced documentary evidence. After appreciating the oral and documentary evidence on record, the Trial Court found that the prosecution was unable to produce cogent evidence to prove the charges against the accused. It, therefore, acquitted the accused vide the impugned judgment and order. Aggrieved thereby, the State is in appeal.

(3.) MR .K.L.Pandya, learned Additional Public Prosecutor, has submitted that though the Trial Court has found that the contraband was recovered from the house of the accused, it has acquitted him on the basis of an erroneous appreciation of the evidence on record. It is submitted that the Investigating Officer has clearly stated that the contraband was found from the house of the accused and in his very presence. Though the Panch witnesses have turned hostile, the evidence of the Investigating Officer ought to have been relied upon by the Trial Court, especially as the report of the FSL reveals that the contraband was Ganja.