DHANPALSINGH BARUNSINGH THAKUR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellants-original accused in Sessions Case No. 264 of 1991 have preferred this appeal. This appeal is filed against the judgment and order of conviction under Sec. 20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and Sec. 66 (1)(b) of the Bombay Prohibition Act. Each of the appellants was awarded R. I. for 10 years and a fine of Rs. 1 lac, in default R. I. for one year under NDPS Act. Each of the appellants was also awarded sentence of R. I. for three months and fine of Rs. 500.00 in default R. I. for one month under Prohibition Act. It was also ordered that substantive sentences shall run concurrently. This judgment and order of the Additional City Sessions Judge, Ahmedabad dated 21-1-1992 is under challenge in this appeal.

(2.) Brief facts leading to the prosecution of the appellants/accused are as under :- Pirmohmadkhan Nathekhan Pathan P. W. 7, Police Inspector Vigilance Squad in Crime Branch, Ahmedabad City, received an information at about 22-00 hours on 6-5-1991 from his informant that there is a house of one Sirajbaba in Patwa Sheri situated near Electric pole No. PK 791. The same is hired by one Nasir. Said Nasir, by engaging servants, is keeping in his possession Charas and is dealing therein. On receipt of this information, P. W. 7 made an entry of the said information in Police Station Diary, being Entry No. 17 of 1991. He then called for two panchas, who agreed to act as panch witnesses. On arrival of the panchas, he prepared a preliminary panchnama and proceeded towards the place of information. The raiding party went in Police vehicle No. P-29 as well as rickshaw towards Bhadrakali Goddess temple and then Three Gates. They stopped their vehicles there, proceeded on foot towards the premises to be raided. On reaching near the premises to be raided, P. W. 7 shouted from ground floor for Nasir and one person came down from that premises disclosed by the informant. On enquiry, that person disclosed his name as Dhanpal Singh (accused No. 1). He belonged to Jhansi in U. P. P. W. 7 informed accused No. 1 that raid is to be carried out in the premises and if he wants to search him/complainant and other members of the raiding party, he may do so. Accused No. 1 declined. Thereafter, the raiding party together with accused No. 1 went upstairs and went to the room on the right hand side, which was half-opened with a light on. There were other four persons inside the room and on asking their names, they disclosed their names, who are now accused Nos. 2 to 5/appellant Nos. 2 to 5 in this appeal. The person of each was searched and an amount of Rs. 1,386.60 in all was found. Thereafter, the room which had area of 15 ft. x 8 ft. was minutely searched and on search of the room, a plastic bag (Minia bag) was found having ISI mark and other writing, which was not legible. On opening the same, it contained three plastic bags, which were then taken out and on opening the same, it contained a substance in the shape of pencil pieces and stick. On smelling the same, it was found to have a smell of Charas. By this time, P. W. 7 had sent for an expert from Forensic Science Laboratory, who also had arrived by that time and on preliminary test, he opined that substance to be Charas. By the time, P. W. 7 also had sent for a person for weighing the substance and a goldsmith was called, who came, weighed the substance and certified the same. The substance weighed 2.270 kgs. On completion of the panchnama of seizure, a complaint was filed with Karanj Police Station, where necessary documents of panchnama and other documents were submitted with the Police Station Officer, along with narcotic substance seized. On offence being registered, the investigation was carried out by one Balubhai Abbesinh Zala P. W. 12, who, on completion of the investigation, entrusted it to one P.S.I. J. J. Chudasma, who submitted the charge-sheet against the accused in the Court of Metropolitan Magistrate, Ahmedabad, who, in his turn, committed the case to the Court of Session, Ahmedabad. Learned Additional City Sessions Judge, Ahmedabad framed charge against the accused to which they pleaded not guilty. Prosecution led necessary evidence to prove the guilt of the accused and on completion of the evidence and on hearing the parties, i.e., prosecution as well as defence, the learned Judge held the appellants-accused guilty of the offences referred hereinabove and passed the impugned order.

(3.) This judgment and order of conviction is challenged by the learned Counsel appearing for the appellants on the grounds, namely : (i) that search and seizure carried out by P. W. 7 is in contravention of and/or without due compliance of the provisions of Secs. 41, 42, 43 and 50 of NDPS Act; said provisions being mandatory one, the whole of the trial is vitiated and the order of conviction is bad; (ii) that the investigation carried out is dishonest one and, therefore, the trial is vitiated; (iii) that the evidence led by the prosecution cannot be the basis for conviction inasmuch as the evidence is only of the Police Officer and though independent witnesses were available, some are not examined and who have been examined have not supported the case of the prosecution; (iv) that the prosecution has failed to prove conscious possession of all or one or some of the appellants; and (v) that the substance seized is not a Narcotic substance.