ABDUL RASID SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two criminal appeals arise out of a judgment and order rendered by City Sessions Court in Sessions Cases No. 26 of 1998 and 360 of 1998 on 27th August, 1999. Mohammed Yusuf Saifulla Shaikh, Abdul Rashid Saifulla Shaikh, Akram Ramzan Dhuldhoya, Gulamnabi alias Gulu Mohammed Mansuri and Hajibhai Sulemanbhai were tried by the Sessions Court in the abovereferred Sessions Cases. Out of them, the Trial Court convicted Mohammed Yusuf Saifula Shaikh and Abdul Rashid Saifulla Shaikh for offence punishable under Section 8 read with Section 21 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 ("NDPS Act" for short) whereas acquitted rest of the accused persons. Aggrieved by the said conviction, Mohammed Yusuf Saifulla Shaikh and Abdul Rashid Saifulla Shaikh have preferred Criminal Appeal No. 1159 of 1999. Against acquittal of Akram Ramzan Dhuldhoya, the State has preferred Criminal Appeal No. 1295 of 1999. (1) For the sake of convenience, Mohammed Yusuf Saifulla Shaikh, who was original accused No. 1 in Sessions Case No. 26 of 1998, is referred to as "A1" Likewise, Abdul Rashid Saifulla Shaikh, who was original accused No. 2, is referred to as "A2" and Akram Ramzan Dhuldhoya, respondent in Criminal Appeal No. 1295 and original accused No. 3, is referred to as "A3" in this judgment.

(2.) The prosecution case, in brief, is that police received an information that two Kashmiri persons sporting beard, having in their possession bags containing certain quantity of Charas, are going to arrive near Shaking Minarets located near Sarangpur AMTS Bus Stand in Ahmedabad, and are going to be received by one Gulubhai Sofawala of Pathar'ni Chawl, Kalol or by his man-Akram and, thereafter, they are to go towards Kalol. This information was received by P.S.I.-C.N. Rajput which, in turn, was passed over to P.I.-Barot, who made an entry in the Station Diary of DCB Police Station, Ahmedabad and, thereafter, arranged for a watch to be kept at the place after calling Panch witnesses. After calling the Panch witnesses and explaining to them the details, a team went to the place and organized a watch. They noticed two persons coming from Kalupur Bus Stand side and standing at Sarangpur AMTS Bus Station. They were carrying bags as per the description received in the information. After the duo waited for some time, a third person arrived at the Bus Station and there was some discussion inter se. At that point of time, the watch party raided on them and inquired about their identity and other aspects after disclosing their own identity. It is further the case of the prosecution that option of being searched in presence of a Magistrate or any other Gazetted Officer was given to the three persons detained, to which they said no. Thereafter, their bags were searched and were found to carry contraband-Charas weighing about 39.825 kgs. For weighing the contraband, a witness was called so also an officer from Forensic Science Laboratory (FSL) was summoned at the spot for obtaining a primary opinion about the nature of material seized. It was opined that the material seized was Charas. Thereafter, sampling was done. The seized material as well as samples was sealed and then, at a later point of time, sent to FSL for examination. The investigating agency, having found sufficient material against the accused persons, filed charge sheet against them in the Special Court, Ahmedabad and Sessions Cases No. 26 of 1998 and 360 of 1998 came to be registered. Charge in Sessions Case No. 26 of 1998 was framed under Sections 8, 20, 21, 23 and 29 of the NDPS Act against A1, A2 and A3, to which they pleaded not guilty and claimed to be tried.

(3.) We have heard learned Advocate, Mr. E. E. Saiyed for A1 and A2, who are the appellants in Criminal Appeal No. 1159 of 1999, and learned Additional Public Prosecutor, Ms. Patel, for the respondent in Criminal Appeal No. 1159 of 1999 as well as appellant in Criminal Appeal No. 1295 of 1999. Respondent-Akram Ramzan Dhuldhoya is not represented by anyone. We, therefore, appoint Mr. Saiyed, who has shown his willingness to assist the Court, to defend original accused No. 3 thereby.