VIRABHAI KALABHAI AAYAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appellant is the original accused No. 2 who has been charged and tried by the learned Special and Additional Sessions Judge, Banaskantha at Deesa in Special Case No. 4 of 2000 on 11th March, 2002 for the offence punishable under Sections 17 read with Section 29 of the Narcotics Drugs and Psychotropic Substance Act and has been sentenced to undergo four years rigorous imprisonment and to pay a fine of Rs. 25,000/-, in default of making payment of fine to undergo one year rigorous imprisonment.

(2.) THE order of conviction and sentence has been assailed on various grounds by the learned Advocate for the appellant. The memo of appeal is received through Jail Authorities. When this appeal was listed for hearing on 7th August, 2007, Ms. Banker has taken me through the entire allegation made by the prosecution against the appellant and also through the relevant part of the evidence led. According to her, as such there was no case against the appellant but the learned trial Judge has surprisingly held the appellant guilty of the charge of offence as aforesaid. A plain reading of the complaint or charge does not reveal any fact under which the appellant even could have been prosecuted. The Panchas have not supported the case of prosecution and mandatory statutory requirement were not followed by the Raiding Officer. The prosecution is under obligation to prove the conscious possession of the substance prohibited under the scheme of N. D. P. S. Act beyond reasonable doubt and for that following the scheme of N. D. P. S. vis-a-vis the other relevant Code of the Criminal Procedure and the Evidence Act, the prosecution should provide evidence which can be said to be cogent and convincing in nature to link the accused with the crime. But, here no such evidence is placed before the Court even then the accused has been held guilty. The finding therefore arrived at by the learned trial Judge should be held to be perverse, based on incorrect appreciation of evidence. On that day the Court was inclined to peruse the original records and proceedings, but the Court time was about to over so the matter was ordered to be listed today. Today I have heard Ms. Pandit, who has responded the submission of Ms. Banker.

(3.) TO appreciate the rival side submission firstly it would be beneficial to state the case of prosecution in brief which is reflected in F. I. R. (Exh. 40) tendered in form of evidence by Prosecution Witness No. 11, Police Sub Inspector, Mr. N. K. Parmar, who is the complainant and has tried to prove the basic allegations made against the accused persons. As per say of P. W. No. 11, Mr. Parmar, P. S. I. alongwith some Police Officials including Mr. Gordhanbhai, A. S. I. and Mr. Shersinh was on petrolling on 17th November, 1999 from 13:30 hours and when they were proceeding from Village Soni to Village Nesda, he had seen two persons and found their movement suspicious. Both of them looked frightened on seeing the Police Jeep Car, and therefore accused were interrogated and they were not able to give satisfactory reply. So because of suspicious, the complainant had called the two persons to remain as Panch Witness and both the suspicious persons were searched. Thereafter, Mr. Parmar, P. I. found opium from the pocket of loose shirt popularly known as "zabhbha" worn by the original accused No. 1, who was resident of village Chania, Tal. Radhanpur. It is the say of prosecution that at that time the present appellant was with Sureshbhai. Both of them were asked that whether they wanted to search them in presence of the Executive Magistrate and both of them replied in affirmative so both the accused persons were taken in the Police Jeep Car alongwith the Panchas. They came to the Police Station from village Soni. The Jeep Car was parked in the open compound and the Executive Magistrate, Deodar was informed. Thereafter, in presence of the Executive Magistrate both the accused persons were searched in presence of the same Panchas and muddamal opium was found in the pocket of Zabhbha worn by accused No. 1. It is alleged that accused No. 1 had tendered that opium and same was weighing with the help of one goldsmith " Maheshbhai Bhogilal of Deodar, which was 210 grams. Out of which 25 grams were separated and taken as sample, other 25 grams was kept as control sample whereas rest of the opium, that is, 160 grams opium was kept in another plastic packet. All the samples were sealed in presence of the Panchas and the slip signed by the Panchas were affixed on the three samples.