LATABEN MANILAL LUKA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred by the appellant-convicts under Section 374(2) of the Code of Criminal Procedure against the judgment and order of conviction dated 23/9/2002 passed by the Sessions Court at Rajkot in N.D.P.S. (Special) Case No. 5 of 2002 convicting the appellant No. 1 for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the Act' for short) and sentencing her to suffer Rigorous Imprisonment for a period of 5 years and fine of Rs. 20,000.00 and in default thereof, ordered to suffer further Rigorous Imprisonment for a period of one year. The appellant No. 1 is further held guilty and convicted for the offence punishable under Section 29 of the Act and was ordered to suffer Rigorous Imprisonment for a period of 5 years and fine of Rs. 20,000.00, and in default thereof, ordered to suffer further Rigorous Imprisonment for a period of one year. The appellant No. 2 is also held guilty and convicted for the offence punishable under Section 20 of the Act and was ordered to suffer Rigorous Imprisonment for a period of 7 years and line of Rs.20,000/- and in default thereof, ordered to suffer further Rigorous Imprisonment for a period of one year. The appellant No. 2 is further held guilty and convicted for the offence punishable under Section 29 of the Act and was ordered to suffer Rigorous Imprisonment for a period of 7 years and fine of Rs.20,000/-, and in default thereof, ordered to suffer further Rigorous Imprisonment for a period of one year. All the sentences were ordered to run concurrently.

(2.) On 8.2.2002, one Surveillance Head Constable Prafulbhai Devshankar Joshi informed the Police Inspector in Pratapnagar Police Station, Rajkot that in Santoshnagar of Popatpara area, the appellants have been storing contraband substance of Charas and they are dealing in this contraband goods. This information was received at 14-00 hrs. and the same was entered into the station diary vide entry No. 29/2002. The extract thereof was forwarded to the DCP. Thereafter, Police Head Constable Prafulbhai Joshi was sent for fetching the panch and other person was sent for calling the officer from FSL. The panch witness and the FSL Officer were apprised of the information received by the Inspector concerned and search of all the members of the raiding party was made and panchnama to that effect was made between 15-10 hrs. to 15-30 hrs. in presence of the panchas and the panchas have signed the said panchnama. Before proceeding for raid, the necessary entry at 15-35 hrs. in the Station diary at Entry No. 30/2002 was made. The raiding party alongwith panchas had proceeded to the place in a private vehicle. The raiding party had raided the premises as per the information received. In the residential premises, in one room, the appellant No. 1 was sitting on the floor near cot and the appellant No. 2 was found to be sitting on the cot. After introducing themselves, they said that they had come to inquire in respect of contraband goods and inquired about their names. The appellant No. 1 has introduced herself as Lataben Manilal Luka and the appellant No. 2 had introduced himself as Iqbal Harun Miyana. After informing them about their intention to search their premises and informing them that the search could be carried out in the presence of the Gazetted Officer or Magistrate and after ascertaining their unwillingness to have such search being made in presence of Gazetted Officer or Magistrate, the search was undertaken. Firstly, the appellant No. 1 was asked to search the lady constable, who had accompanied the raiding party and then the lady constable took search of the appellant No. 1. It may be noted that the appellant No. 2 was firstly asked to search the staff of raiding party and the panch witnesses and then the appellant No. 1 was asked to search the lady constable accompanied with the raiding party and no contraband was found. The search was carried out on appellant No. 2. Before taking of the search, he was categorically asked as per the provisions of Sub-Section 50 of the Act that whether he would like to gel himself searched in presence of either the Magistrate or the Gazetted Officer and he declined. This inquiry about his willingness to be searched in presence of either Magistrate or Gazetted Officer has been recorded in a report, which is signed by panch and the accused. The search of appellant No. 2 yielded two substance of round shape and the search of appellant No. 1 by lady constable yielded two oblong substance of black colour from ash colour cloth bag lying in the lap of appellant No. 1. The FSL Officer was requested to examine the substance, who in tern opined that the same was Charas. The drawing of panchnama started at 16-40 hrs. which was stopped as the Head Constable Shri Joshi was sent for fetching someone to weigh the recovered substance, at 17-10 hrs. Shri Joshi fetched one person, who gave his name as Rajeshbhai Rameshbhai resident of Parsananagar, who weighed the substance. Firstly, the substance, which was recovered from the appellant No. 1 was weighed was found to be of 340 grams and the substances recovered from the appellant No. 2 weighed 470 grams. The certificate signed by the weighing man Shri Rajeshbhai was obtained to this effect. Thereafter, panch lifted the mattresses and recovered xerox copy of ration card, which contained the name of the appellant No. 1. As per the say of the complainant, thereafter, an amount of Rs.10,900/- was recovered from Lataben, i.e. the appellant No. 1. The substance recovered from appellant No. 2 was sealed and the seal of Police Inspector, Rajkot City was affixed thereon. Thereafter, the substance recovered from appellant No. 1 was also sealed and the seal of Police Inspector, Rajkot City was affixed thereon. The amount of Rs.10,900/- was also sealed and the seizure list was prepared, whereon the signatures of the accused and panchas were taken. The first copies were given to the accused and after the panchnama was over at 18-30 hrs., the accused were arrested and the arrest information was given to them as per the requirement of the NDPS Act and thereon the signatures of panchas were also taken. Thereafter, the panchnama was stated to be over. It was inquired as who is to be informed about the arrest, then, the appellant No. 2 informed that his brother should be informed and appellant No. 1 informed that her husband should be informed. Thereafter, the complaint came to be lodged and on further inquiry, it was revealed that Charas in question was brought from one Chand Mohmad residing in U.P. The complaint was completed at about 19-30 hrs. and about 19-30 hrs. they started from Popatpara for their return journey to Police Station and thereafter, the PSO was handed over all the articles like panchnama, muddamal articles, arrest memo, seizure memo and accused Nos. 1 and 2, etc. and the investigation was ordered to be handed over to Shri Vala, PSI. After completion of the investigation, the police report was filed and charge came to be framed against the appellants for the commission of offences under Sections 20 and 29 of the NDPS Act. The charge was framed on 24th April, 2002. The accused Nos. 1 and 2 denied the charge and demanded that they be tried.

(3.) Thereafter, the prosecution had examined various witnesses in support of the ease and documentary evidence. The Trial Court thereafter recorded further statement of the accused under Section 313 of the Code of Criminal Procedure. Both the accused have completely denied the allegation. The Trial Court after considering the depositions and documentary evidences, came to the conclusion that the prosecution has successfully proved its case and convicted the accused the appellants for the commission of offences under Sections 20 and 29 of the Act.