VIJAYKUMAR @ MONTU KISHANLAL BADVAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant original accused No. 1 has filed this appeal under Section - 374 (2) of the Criminal Procedure Code against the judgment and order dated 30.07.2003 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Surat in Special Case No. 224 of 1996 whereby the appellant original accused No. 1 was convicted for an offence under Section 8 (c), 9, 10, 21 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short 'NDPS Act') and was sentenced for R.I of 10 years with fine of Rs.1 lac (Rupees One Lac Only) and, in default thereof, to undergo R.I of 1 year more.

(2.) THE appeal was admitted by this Court on 31.8.2004. Since the appeal was preferred through jail, in the appeal memo itself which is in the form of a letter addressed to this Court, prayer for bail was made. This Court has, however, refused the prayer for bail. The appellant original accused No. 1 is, therefore, in the jail right from 11.06.1996, the date on which the alleged incident was taken place.

(3.) THE prosecution story in short is that the complainant Mr. G.P. Powar, P.S.I., D.C.B. Police Station, Surat City has filed a complaint on 11.06.1996 stating that at about 09.30 a.m. in the morning, when he was present in the Police Station, he received a telephone call from an unknown person informing him that last year one Mr. Rajesh Vicky and his wife Sapna were arrested for committing an offence punishable under the Act for keeping contraband article, namely, brownsugar with them and his two brothers, namely, Deepak and Vijay @ Montu who are staying in a house opposite to Jagdamba Provision Stores in Limbayat Sardarnagar Society, Vijay was having large quantity of brownsugar and he used to sell the brownsugar in small packets. The informant was told that if he comes personally and informs, he would get the prize from the Government. The said Mr. Powar has noted down the discussion which was taken place on the phone with the said informant on a blank paper and it was also recorded in the Station Diary at Entry No. 5/1996 at about 09.50 a.m. To verify the correctness about this information, P.S.I. R.A. Munshi and Raol were sent to the place and the said information was found to be correct. Thereafter, this information was sent in a sealed cover to the Deputy Police Commissioner (Administration), Surat. Pursuant to this, an authorisation was issued under Section 41 (2) of the Act. The entire police staff along with F.S.L. Expert Mr. Amin M. Pathak and G.G. Sheikh were present in the Police Station. Head Constable Dilipsaheb Rao was sent to call two local reputed witnesses to work as panch witnesses. After following the detailed procedure as per the provisions of the Act and after taking weighing kits with them, all of them have gone through the police vehicle at the place informed by the informant and while carrying out the raid in presence of police personnels, panch witnesses and FSL persons, they found the accused, namely, Vijay @ Montu at the place and in the room, below the mattresses, there was one white plastic bag wherein different packets containing brownsugar weighing about 1160 Grams were found. Over and above this, there were two small packets of brownsugar wrapped in the paper and the sale proceeds of brownsugar amounting to Rs.7,312/ - were also found. Since the accused did not have any license or permit, they could not produce the same when they were asked about the same. Since the accused have kept with them the brownsugar without any license or permit for the purpose of sell, they have committed an offence under the provisions of the Act and hence, complaint was registered with D.C.B. Police Station being III Crime Register No. 220 of 1996 under the provisions of Section 8 (c), 9, 10, 21 and 29 of the Act. Other accused, namely, (1) Gaurishankar, (2) Shankar, (3) Chand Machhiwala and (4) Rajesh @ Vicky Kishanlal were found absconders. The accused Nos. 1 and 2 were arrested after explaining them the reasons, in detail, for their arrest, and after preparing panchnama of the seizure of contraband brownsugar found from the accused.