SOHANLAL KASIRAM BRAHMIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is filed by the appellants-original accused Nos. 1 & 2 through Jail against the judgment and order dated 29.01.2002 passed by the learned Additional City Sessions Judge, Court No. 9, Ahmedabad in Sessions Case No. 26 of 2001 whereby the appellants were convicted under Section ? 17 read with Section 29 of the NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 (hereinafter referred to as ?the Act?) and were ordered to suffer rigorous imprisonment for a period of 10 years and fine of Rs. 1 Lacs and in default thereof, each of the accused to undergo further R.I of two years.

(2.) The case of the prosecution is that P.W. 1 ? J.N. Parmar, P.I., attached to the State Narcotic Cell was on duty in the morning on 20.11.2000, when while he was in the office with PI Chauhan, he received a secret information to the effect that, two persons of Rajasthani origin one of whom was named Sohanlal and the other being named Ramchandra and that, the said Sohanlal Kasiram Brahmin would be wearing ear rings in his ears and both of whom would be aged about 30-35 years and information was further given to the effect that, both the above referred persons would be passing form Khokhra Bridge and go to Kankaria Lake from the road behind the Kankaria Zoo and that, both of them would be carrying on their person large quantity of narcotic substance Opium. On receipt of such secret information, the same was reduced in writing in a register maintained in this regard and an entry was made on page No. 104 of the said register with regard to the information received. Immediately after making the entry in the said register, report was made to the superior Officer being the Incharge ACP of the Narcotic Cell and such report was forwarded immediately as per the instructions of P.W. 1 ? Mr. Parmar. Subsequent thereto, P.W. 3 ? Mr. Chauhan, Police Constables ? Hirabhai, Natubhai Makwana, Vinodbhai Dantani were instructed to make preparations to carry out a raid and necessary equipment relating thereto such as wax, seal, string, kit box, weighing scale etc. were gathered and subsequent thereto, P.I. Parmar together with all these persons have left Gandhinagar office of the State Narcotic Cell in vehicle bearing Registration No. GJ-1-V-3272 and reached the office of the Superintendent of Police, Incharge of the Narcotic Cell who was on duty in the office of the Economic Offences Cell located at the New Mental Hospital premises and on reaching the said office, police constable Natubhai was instructed to secure the presence of Panch witnesses, and PI Parmar went over to the office of the S.P., Incharge of State Narcotic Cell and handed over the necessary report containing the information with regard to the raid in question. Subsequent thereto, on the panchas arriving thereat, a search was carried out with regard to the persons of each of the members of the raiding party including the Panch witnesses and nothing incriminating was found upon such search. A preliminary panchnama was drawn between 12.30 hours and 13.00 hours and after completion of such preliminary panchnama, all the members of the raiding party including the Panchas left the office of the Economic Offences Cell and reached the scene of the raid via Chamunda Bridge, via Anupam Cinema, via Khokhra Bridge and the police vehicle was parked near the compound wall of the Municipal Garden known as Balvatica. At about 2.00 p.m., two persons corresponding to the description provided in the secret information were seen coming from the Khokhra Bridge towards where the members of the raiding party were found located and scattered in watch. The moment the said two persons came near at the electric pole, one of the two persons, in whose hand there appeared to be a bag containing something heavy in weight therein was apprehended by P.I. Parmar, whereas the second person apprehending his arrest attempted to flee from the scene of the incident and he was immediately caught hold by Police Constable Vinod Dantani.

(3.) After observing the necessary formalities as laid down in Section 50 of the Act and since the said two persons did not express their desire to have their search in presence of a Magistrate or a Gazetted Officer, firstly, the accused No. 1 - Sohanlal was searched and on opening the bag found in his possession, another rexine bag of light blue colour was found, within which, two plastic bags were found wherein a semi-solid substance which was pinkish brown in colour was found. A preliminary test was carried out by P.I. Parmar with the aid of the kit box and on such preliminary test, the same was found to be opium. Subsequent thereto, both the bags containing the said substance Opium were weighed together with all the bags in which they were found and the cumulative weight of such substance was established to be 10 Kgs. Soon thereafter, from the substance so found in both the bags, two samples were drawn weighing about 50 Gms. each and a sample to be forwarded to the FSL for analysis and test thereupon was drawn as also a reserve sample was drawn from the bulk of the substance so seized. Such samples were placed into two small plastic bags which were thereafter, heat sealed and both the samples were placed in two separate plastic containers brought along by the members of the raiding party. Slips bearing the signatures of the Panchas as also P.I. Parmar were placed on the top of the containers and both the containers were closed by closing the lid thereon. Subsequently, each of the containers was wrapped in white paper and both of them were tied with string and another slip bearing the signatures of Panchas, P.I. Parmar as well as the accused were placed on the top of each of the containers and thereafter the same was tied up with string and each of the containers was thereafter sealed by applying a wax seal of PI, NDPS, GS, CID Crime and were sealed in such manner. The sample drawn for the purpose of forwarding the same to the FSL was earmarked as mark ?A-1? and the reserve sample was earmarked as mark-A-2, whereas the main bulk of the sample was kept lying in the same state in which it was found during the search and the same was tied up in a transparent plastic bag, which was tied over with string, placed in the rexine bag and the said rexine bag was subsequently placed in the bag of fertilizer. A slip bearing the signatures of P.I. Parmar, the Panchas as also the accused was placed on the top of the rexine bag and the bag of fertilizer was stitched and closed with string and the same was tied in such fashion and another slip bearing the signatures of the Panchas, P.I. Parmar as also the accused was affixed thereon and subsequently the same was also sealed in the same manner.