KANUBHAI PURSOTTAMBHAI BARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Above-numbered appeals filed under Section 374 (2) of the Code of Criminal Procedure, 1973 are directed against common judgment dated February 14, 2000 rendered by the learned Additional Sessions Judge, Court No.6, Ahmedabad in Sessions Case No.218 of 1999 by which the sole appellant in Criminal Appeal No.217 of 2000 and two appellants in Criminal Appeal No.360 of 2000 are convicted under Sections 17, 18 read with 29 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Sthe Act, for short) and each sentenced to suffer RI for 12 years and fine of Rs.2 lakhs in default R.I. for one year. As both the appeals are directed against the same judgment delivered in Sessions Case No.218 of 1999, this Court proposes to dispose them of by this common judgment.

(2.) Mr V.J. Solanki, who was then discharging duties as PI, State Narcotic Cell, Gandhinagar, received an information at about 10 AM on June 17, 1999 from his informant that two persons from village Valetva with their one accomplice were engaged in trafficking of opium and ganja and were to pass from Petlad to Khambhat between 14.00 and 15.00 hours with opium and ganja in an auto rickshaw. In the information it was also stated that one of the persons i.e. Kanubhai Pursottambhai Bariya (the appellant in Criminal Appeal No.217 of 2000) was wearing light sky blue coloured pant and white blue lining shirt whereas another person i.e. Shanabhai Poojabhai Vaghela (appellant no.1 in Criminal Appeal No.360 of 2000) was wearing white trouser and open shirt and the third person i.e. Khodabhai Dhulabhai Parmar (appellant no.2 in Criminal Appeal No.360 of 2000) was wearing white open shirt having blue linings. The information received was reduced into writing by Mr Solanki. He made report to the Superintendent of Police, State Narcotic Cell, Ahmedabad who is his immediate official superior. Thereafter, he summoned PSI Mr A.A.Pathan, PSI Mr U.M. Jadav, Head Constable Pavansinh Parmar, Head Constable Hirabhai Kapadiya and Head Constable Vinodbhai Dantani as well as SRP personnel and conveyed to them the secret information received by him. Necessary equipments like weighing scale, sealing wax, kit box, etc. were requisitioned as it was decided to carry out a raid. The members of the raiding party thereafter proceeded in a police jeep via Nadiad and reached Ganpati Mandir of village Rangipura. From village Rangipura services of two panch witnesses were requisitioned. Thereafter, secret watch was arranged near Manglam party plot situated on Nadiad-Khambhat Highway. At about 4.30 PM one auto-rickshaw coming from Petlad side with persons whose description was given in secret information was spotted. The rickshaw was stopped and the occupants thereof were interrogated. On interrogation one person disclosed his name to be Kanubhai Parshottambhai Baria, i.e. the appellant in Criminal Appeal No.217 of 2000 whereas second person disclosed his name to be Shanabhai Poojabhai i.e. the appellant no.1 in Criminal Appeal No.360 of 2000 and the third person disclosed his name to be Khodabhai Dhulabhai Parmar i.e. the appellant no.2 in Criminal Appeal No.360 of 2000. P.I. Mr Solanki informed the three persons that he had received an information that they were dealing in opium and ganja and therefore it was necessary to search them. P.I. Mr Solanki thereafter informed the three accused that if so required by them, they could be taken before a Gazetted Officer or Magistrate for search. However, the three appellants declined the offer. Thereupon, the belongings of all the occupants were searched. It was found that accused Kanubhai Parshottam Baria was carrying a dark blue coloured old cotton bag. On opening the same a blue coloured plastic bag was found. On opening the said plastic bag it was found that it was containing another plastic bag wherefrom black coloured substance was found and it was ascertained to be opium on smelling. The substance found was weighed by Head Constable, Balwantsinh Nansinh Parmar. The weight of the substance found was 500 g. From the substance found, samples were drawn and sealed as required by law. As far as appellant no.1 in Criminal Appeal No.360 of 2000 i.e. Shanabhai Poojabhai Vaghela is concerned it was found that he was carrying a while coloured broken plastic bag. On search of the said bag, another plastic bag was found wherein the flowering and/or fruiting tops of cannabis plant were found. The said substance was analysed with the help of kit box carried by the members of the raiding party and it was prima facie found to be ganja. The substance found was weighed by Head Constable, Balwantsinh Parmar and its weight was found to be 2 kg. From the quantity of ganja found, a sample of 100 g was drawn, which was sealed as required by law. Thereafter, the plastic bag with handle carried by Khodabhai Parmar, i.e. the appellant no.2 in Criminal Appeal No.360 of 2000 was searched. From the said bag also flowering and/or fruiting tops of cannabis plants were found. The substance found was weighed by Head Constable, Balwantsinh Parmar. The weight of substance was found about 1 kg out of which sample of 100 g was drawn and sealed. P.I. Mr Solanki demanded from the appellants pass or permit authorising them to possess opium and/or ganja. The accused could not produce any such authorisation. Therefore, all three appellants were arrested as they committed offences punishable under the Act. After arrest seizure memo was issued to the accused concerned. It was further found by Mr Solanki that the accused were travelling in auto rickshaw bearing registration No.GJ-7-V- 9187 of Bajaj make. In presence of panch witnesses the driver was interrogated. He disclosed his name to be Munavar Nazirkhan Musalman, residing at Petlad. The rickshaw was also searched but nothing incriminating was found and therefore the rickshaw driver was permitted to go. P.I. Mr Solanki also informed each accused the grounds of arrest and conveyed intimation to the relatives of the accused that they were arrested with referece to commission of offences punishable under the Act. He thereafter went to Gandhinagar Zone Police Station and lodged his complaint against the accused, which was numbered as II C.R.No.9/99. P.I. Mr Solanki handed over the accused and muddamal to Mr J.B. Rana, who was then P.S.I. C.I.D. Crime Narcotic Cell. PSI Mr Rana kept the muddamal in safe custody. He despatched the samples to FSL for analysis through Head Constable Balwantsinh. The muddamal was analysed by the FSL. The report of the FSL indicated that the substance seized from possession of accused Kanubhai Parshottam Baria was opium whereas the substance found from possession of accused Shanabhai Pujabhai Vaghela and Khodabhai Dhulabhai Parmar was ganja. On completion of the investigation the accused no.1 i.e., Kanubhai Parshottambhai Baria was charge-sheeted for commission of offences punishable under Sections 8(c) and 17 of the Act whereas accused nos.2 and 3 were charge- sheeted for commission of offence punishable under Section 8(c) and 20(b)(i) of the Act in the court of the learned Metropolitan Magistrate, Ahmedabad. As the offences punishable under the Act are triable by a Special Judge, the case was committed to City Sessions Court, Ahmedabad for trial where it was numbered as Sessions Case No.218 of 1999.

(3.) The learned Additional Sessions Judge, Court No.6, Ahmedabad to whom the case was made over for trial framed necessary charge against the sole appellant in Criminal Appeal No.217 of 2000 under Section 8(c) and 17 of the Act and against appellants in Criminal Appeal No.360 of 2000 under Section 8(c) and 20(b)(i) of the Act. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) panch witness Dahyabhai Maganbhai Bhoi as P.W.No.1 at exh.11, (2) P.I. Mr Vakhatsinh Jetisinh Solanki, as P.W.No.2 at exh.12, (3) Head Constable, Balwantsinh Nansinh as P.W.No.3 at exh.31, (4) ASI, Baldevji Chhanaji Mena, as P.W.No.4 at exh.32, (5) Auto Rickshaw driver, Manwarkhan Nazirkhan Pathan as P.W.No.5 at exh.34 and (6) PSI, Mr Jasubha Bapusaheb Rana as P.W.No.6 at exh.36 to prove its case against the appellants. The prosecution also produced documentary evidence such as entry No.87 from station diary maintained at State Narcotic Cell indicating receipt of secret information by PI Mr Solanki at exh.13, entry from station diary indicating handing over of accused and muddamal to PSI, Jasubhai Rana at exh.14, report sent by P.I., Mr Solanki to his immediate official superior as required by sub-section (2) of Section 42 of the Act at exh.17, complaint lodged by P.I. Mr V.J. Solanki at exh.18, panchnama prepared at the time of seizure of contraband items from possession of the appellants at exh.19, intimation given to the accused indicating compliance of Section 50 of the Act at exh.20, the seizure memo served on accused Kanubhai at exh.21, seizure memo served on accused Shanabhai at exh.22, the seizure memo served on accused, Khodabhai Parmar at exh.23, intimation given to Parshottambhai Madhabhai Baria that Kanubhai Parshottambhai Baria was arrested for commission of the offences punishable under the Act at exh.24, intimation given to Maganbhai Vagjibhai Parmar informing that accused Khodabhai Dhulabhai Parmar was arrested for commission of the offences punishable under the Act at exh.26, report under Section 57 of the Act to the Superintendent of Police, Narcotic Cell informing him that the raid was carried out and contraband items were seized at exh.27, report to the learned Magistrate having jurisdiction in the matter at exh.28, intimation to Mr J.B. Rana requesting him to investigate the case at exh.29, forwarding letter with which muddamal was sent to FSL for analysis at exh.30, receipt issued by FSL for having received the muddamal for analysis at exh.33, report of FSL at exh.35, etc. in support of its case against the appellants.