ISHMAILBHAI AMINBHAI SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short), challenge is to the correctness of the judgment and order dated 31.8.2000 rendered in Sessions Case No.292 of 2000 by the learned Additional Sessions Judge, Ahmedabad City, by which the sole appellant ('the accused' for short) has been convicted for commission of the offence punishable under Section 8(C) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) and sentenced to suffer RI for 12 years and fine of Rs.1 lakh i.d., R.I. for 1 year.

(2.) Since the facts of the case have been detailed in the judgment of the trial court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed for deciding this appeal, as disclosed from the FIR and unfolded during trial, are as under:

(3.) Ms. Sadhana Sagar, learned advocate of the accused, has assailed the impugned judgment and order of the trial court by contending that the prosecution has examined the members of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non-compliance of the mandatory as well as statutory provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. It is also highlighted by her that the prosecution has not been able to successfully establish that the contraband article which was sent to FSL was not tampered with during the course of its journey from the stage of seizing and sealing till its reaching the FSL. It is also emphatically submitted by her that P.W.1, Jayeshbhai B. Nayak, who is an independent witness, has not supported the prosecution case with regard to the recovery of Charas, seizure and sealing of the same and second panch has not been examined, therefore, the contents of the panchnama are not proved and in that view of the matter, the prosecution has not been able to prove the culpability of the accused for commission of the offence punishable under Section 21 of the NDPS Act. On the aforesaid premises, it is contended by Ms. Sadhana Sagar, learned advocate that the prosecution has not been able to establish the guilt of the accused and, therefore, the impugned judgment and order passed by the trial court deserves to be quashed and set aside by acquitting the accused. She, therefore, urged to allow the appeal.