AJITBHAI ISMAILBHAI PINJARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal against the judgment and order of conviction passed by Ld. Special Judge, Surendranagar in Special Case No.1/1998 on 17.09.1999 whereby the appellant-original accused has been held guilty of the offences punishable under Section 8(c) R/w Section 21 of The Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"} and has been sentenced to suffer R/I for 10 Years and to pay a fine of Rs.l Lakh (Rs. One lakh only), I/d to further undergo S/I for 2 Years.

(2.) We would like to narrate facts in brief so that the evidence led by the prosecution can be appreciated in the perspective of the evidence that has been led by the prosecution before the trial Court. That on 16.01.1998, Police Inspector Mr. H.K. Chauhan, Police Inspector of State Narcotic Cell, along with his other staff members, were proceeding towards Surendranagar in a vehicle namely jeep-car and when they stopped at a Tea-stall located somewhere near Gebansha Pir Dargah in between town Vadhawan and Surendranagar, Mr. Chauhan got one information regarding appellant accused and his name and physical description was also given to Mr. Chauhan by the informant and he was also informed that appellant accused is likely to pass through Vadhawan for going to Surendranagar in the afternoon and that he would be carrying Charas- a contraband substance under the scheme of the NDPS Act. On receipt of information, a report was prepared by P. I. Mr. Chauhan and the same was sent in an envelope to Ahmedabad Office by a special messenger i.e. with one Police Constable Mr. Desai and Mr. Desai was asked to deliver said information/envelope to the Supdt. Of Police of Narcotic cell. Mr. Chauhan, thereafter visited a STD Telephone Booth and talked on telephone with Supdt. Of Police at Ahmedabad and arranged for two panchas so that search can be arranged. Mr. Chauhan, along with staff members, placed themselves in a nearby area from where suspect was supposed to pass through. It is the case of the prosecution that meanwhile, a person whose description was given, came there and, therefore, he was intercepted and searched. Before carrying out formal search, he was asked by Mr. Chauhan that if he wishes to get himself searched in the presence of any gazetted officer or a Magistrate, then he may express his wish accordingly, but the appellant accused had refused the offer and permitted Mr. Chauhan to carry out the search. According to the prosecution, appellant accused had put on zabhbha and paizama and from one of the pockets of zabhbha, contraband substance namely Charas was found in a plastic/polythene bag. Some part of that bag was found cut-off and substance was smelled and it was found that the same was Charas. It is the say of the prosecution that the State Narcotic Cell headed by Mr. Chauhan was carrying with them a testing kit and it was found that the article found from the pocket of the zabhbha of the appellant accused is a Charas. So, the same was seized and after weighing it and completing formalities to take out samples etc., it was seized on the spot. Three samples were taken. During search, police also found cash amount of Rs.2500/ from one another pocket of zabhbha put on by the appellant accused. That amount was also seized. This entire exercise of search and seizure was carried out in the presence of two panchas i.e. Panch Bhupatbhai and Panch Shankar Keshav and panchanama was prepared. Signature of the accused was also obtained as alleged by the prosecution on the seizure memo as well as document prepared by police with a view to discharge the obligations cast on searching officer under Section 50 of the N.D.P.S. Act. Signatures of both the panchas were also obtained on both these documents. This exercise was undertaken somewhere between 18.15 hours and 19.15 hours. Thereafter, the accused along with relevant documents and muddamal seized, was taken to Surendranagar Police Station and Mr. Chauhan lodged a formal complaint for the aforesaid offences committed by the appellant accused and he was handed over to Police Station Officer of Surendranagar Police Station along with muddamal seized. On completion of investigation, PSI Mr. Kureshi chargesheeted the accused. After appreciating oral as well as documentary evidence led by the prosecution during trial, Ld. Special Judge accepted the case placed by the prosecution and held the appellant accused guilty of the offences punishable under Section 8(c), 21 of NDPS Act and sentenced him to suffer R/I for 10 Years and to pay a fine of Rs.l Lakh (Rs. 1 Lakh only), I/d to further undergo S/I for 2 Years. Hence, present Criminal Appeal.

(3.) The appellant accused has assailed the legality and validity of the judgment and order of conviction and sentence on various grounds mentioned in the memo of appeal and has prayed that the impugned judgment should be quashed and set aside and appellant accused may be acquitted of the charges for which he is convicted and sentenced.