STATE OF GUJARAT Vs. JAYSUKHBHAI NAGJIBHAI

JUDGEMENT

(1.) THE present Appeal is directed against the impugned judgment and order passed in Special (NDPS) Case No.16 of 1999 by the learned Additional Sessions Judge, Bhavnagar dated 21.6.2003 recording the acquittal for the alleged offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").

(2.) THE facts of the case briefly summarized are that the accused is having the medical store at Gadhda, Opposite the police station. On 18.5.1994, the Dy. S.P. Botad received a secret information that the accused is having a contraband article opium in the godown of his medical store known as Shreeji Medical Store. On the basis of the secret information a raid was arranged, for which the panchnama of the first part was made and thereafter they reached the store of the accused between 9:15 to 9:45 AM. The accused was present and the contraband article was recovered from the shutter of the godown wrapped in a white cloth bag. It is also the case of the prosecution that necessary resolution under Section 42 of the NDPS Act was made with regard to the search of the accused and the contraband article as stated above was recovered from the godown of the accused, which is kept in the shutter. On the basis of that, the FIR being Prohibition I -CR No. 28 of 1999 under the NDPS Act has been registered for the offence under Sections 8 and 17 of the NDPS Act, which has culminated in Special (NDPS) Case No.16 of 1999. The special court proceeded with the trial. After recording of the evidence of the prosecution witnesses was over, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. After hearing the learned APP and the learned Advocate for the defence, the court below recorded the acquittal on appreciation of material and evidence. It is this judgment and order, which has been assailed in the present Appeal on the grounds stated in the appeal.

(3.) HEARD learned APP Mr. H.K.Patel for the Appellant State of Gujarat. Learned APP Mr. Patel referred to the impugned judgment and order and also the testimony of the witnesses, including the testimony of the Panch Witness at Exh.22. He also referred to the testimony of the Executive Magistrate at Exh.53. Learned APP Mr. Patel submitted that as could be seen from the panchnama and the testimony of the witnesses, the shop / store belonged to the accused. He pointedly referred to the panchnama and submitted that the contraband article has been recovered from the godown of the shop belonging to the accused. He therefore submitted that the conscious possession is established and the court below has failed to appreciate this aspect while recording the acquittal.