MOHAMADALI SULEMAN VARACHHIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two appeals are directed against the judgment and order dated 26/10/1988, passed by the then learned Additional Sessions Judge, at Surat, in Sessions Case No. 39 of 1988 on his file whereby the appellant in Criminal Appeal No. 961 of 1988 came to be convicted of the offence under S. 20(B)(2) of the Narcotic, Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred to as 'NDPS Act'), Section 20(B)(1) of the NDPS Act and S 66(A) and (E) of the Bombay Prohibition Act, and Sentenced to, 20 years' rigorous imprisonment and a fine of Rs. 2 lakhs, in default 4 years rigorous imprisonment more in respect offence under S. 20(B)(2) of the NDPS Act; rigorous imprisonment for one year and fine of Rs. 5,000.00, in default rigorous imprisonment for 3 months more in respect of the offence under S. 20(B)(2) of NDPS Act; while no separate sentence was passed in respect of the offence under S. 66(A) and (E) of the-Bombay Prohibition Act, and rest of the two accused who are respondents in Criminal Appeal No. 91 of 1989 came to be acquitted.

(2.) The facts leading the parties to prefer these two appeals may in brief be stated. Shri P. S. Patel, the then Divisional Police Officer at Surat received information that Mohmadali Suleman varachhia and others were dealing in ganja, charas and opium etc, at their place at Kosamba. Hence he along with PSI Gohil, PSI Pathak, A.S.P. Keshavkumar and other members of the Staff went to Kosamba called two panchas and then raided the house of Mohamadali Suleman Varachhia bearing Panchayat No. 1/1.62/4 Mohamadali and Shaikh Ismail Shaikh Ibrahim were present in the house. After the house was raided, on minute search a bag below the mattress on the bedstead containing 51 round and rectangular shaped lumps of charas 7 Kg. and 400 grams in weight was found. Further the aluminium tin was found from where round lumps of charas weighing 1 Kg. 800 grams were found. From another tin 19 lumps of charas weighing 1 Kg 900 grams was found, while from tin box 950 grams hemp could be seen. The police could also get weighing-tools and Rs. 145.00. Both present in the house did not have (sic) any pass or permit to possess or to deal in the same. As the search proceeded further the police could realise that above two persons and Dipak Kishanlal were jointly dealing in narcotic substances against law and all the three had committed the offences punishable under NDPS Act and Bombay Prohibition Act as well. The complaint was then filed by the Divisional Police Officer, Surat and investigation was then carried out. At the conclusion of the investigation. the chargesheet against all the three was filed before the Court of that learned Chief Judicial Magistrate at Surat. As the learned Chief Judicial Magistrate Surat, was not competent to hear and decide the case. he committee the case to the Court of Sessions which came to be numbered as Sessions Case No. 39 of 1988. The then learned Sessions Judge at Surat assigned the case to the then learned Additional Sessions Judge for hearing and disposal in accordance with law. A charge against all the three accused was framed at Exh. 6. All the three accuse then pleaded not guilty. The prosecution then led necessary evidence against the accused. At the conclusion of the trial, the learned Judge below found that Mohmadali Suleman had committed the offences. He therefore held him guilty and convicted and sentenced him as aforesaid. However he found that Ismail Ibrahim Shaikh and Dipakkumar Keshavlal, the original accused Nos. 2 and 3 were not guilty as the prosecution had failed to establish the charge against them. With the result, the learned Judge below acquitted both these accused. Being aggrieved by the judgment and order of conviction. Mohamadali Suleman has preferred Criminal Appeal No. 961 of 1988; while the State has preferred Criminal Appeal No. 91 of 1989 being aggrieved by the order acquitting accused Nos. 2 and 3 namely Shaikh Ismail and Dipakkumar.

(3.) As both the appeals arise out of the same judgment and order and common question, of law and facts arise in both the appeals, with a view to avoid waste of time, hardship to the parties, and conflicting judgments, we decided to hear both the appeals together and dispose them of by a common judgment. Accordingly, both the appeals are heard and by this common judgment, both shall stand disposed of.