STATE OF GUJARAT Vs. GAFURKHAN @ JADUGAR S.PATHAN

JUDGEMENT

(1.) By means of filing this Appeal under Section 378 of the Code of Criminal Procedure, 1973, the appellant State of Gujarat has challenged the judgment and order of acquittal dated 13th January 1994 passed by the learned Additional Sessions Judge, Vadodara in NDPS Case No. 30 of 1992 whereby the respondents-accused have been discharged from the offence punishable under Section 20 [b](2) and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ["NDPS Act" for short].

(2.) At the outset, it is required to be noted that by virtue of Oral Order dated 21st September 2015, this Appeal stood dismissed as having been abated qua the respondent no. 1-Gaffar Khan alias Jadugar Sattarkhan Pathan, on a statement made at the bar by Shri B.R Parikh, learned advocate appearing on behalf of the said respondent.

(3.) Brief facts of the prosecution case are that, when Shri Pravinchandra Balkrushna Upadhaya was serving as a Police Inspector, D.C.C. Police Station, Vadodara, on 02nd August 1992, he received an information at about 07:30 to 08:00 O'clock in the night that one Jadugar alias Gaffar does the business of selling "Charas" in Nawabvada and the same is kept in the house of one Banubibi. Thereafter, first of all, the information was confirmed and on finding the same to be correct, panchas were called. A lady constable named Bibiben was called by making a phone call to the City Police station, Vadodara. Thereafter, a primary panchnama in that regard was drawn and panchas were asked to search each other physically, wherein nothing objectionable was found. Thereafter, he informed his senior officer and an entry in this regard was made in the station diary. After taking seal, lac, threads and other articles necessary to conduct the raid, he left the premises in his vehicle and one another vehicle was deployed for staff and panchas. On reaching near Ravpura School No-1, he made both the vehicles to stop there and again explained the modus of raid before his staff members. Thereafter, he sent half of the persons of the police party with PSI J.T. Rana. Whereas, he formed his own separate team with the remaining police personnels which also includes PSI Shri C.D. Jadeja. Shri J. T. Rana was instructed to keep watch on the house of Banubibi along with his team. Whereas, he himself, along with his team went to the house of the accused No-1 Gaffur Khan. On seeing this, Gaffur Khan came out of his house and started running away. At that time, Head Constable Fakirbhai Punabhai identified him and he tried to catch him, but couldn't catch the accused. The accused Rammilan Bholanath Pathak was also there at that time. He was stopped and his name and address were asked and thereafter, he was searched physically, wherein small balls of "Charas" weighing about 50 gms were found from the pocket of his pant. Apart from that, money was also recovered from him. Accused Gaffur Khan ran away after throwing a plastic bag. On searching the same, "Charas" was found therein. Apart from that, on searching the house of the accused, some quantity of Charas was also recovered from the container. Out of all the aforesaid quantity of recovered Charas, samples of 100 gms were seized and sealed from the house of accused Gaffur Khan and from the bag thrown by him. Whereas, the entire quantity of Charas found from Rammilan was seized and sealed as sample. Besides that, electricity bill, ration card., etc were recovered from the house of accused no.1 and the same were seized. Having done all the aforesaid procedures, they went to the house of Banubibi; raid was carried out there and charas was recovered from a tin box. Samples of 100 grams each were taken from the same and they were sealed and remaining charas was sealed. Electricity bill and ration card recovered from the house of Banubibi were seized too. Accused Banubibi and Rammilan Bholanath Pathak were arrested and at that time, muddamal was seized and panchnama was drawn. Thereafter, he went to DCB police station and lodged complaint against the accused Gaffurkhan Sattarkhan, his wife Amirbibi Gaffurkhan, Banubibi Habibkhan, Rammilan Bholanath Pathak. Muddamal and both arrested persons were produced along with the complaint. PSO lodged an offence on the basis of the complaint. Thereafter, he intimated his commissioner Mr. Singh about successful completion of raid and thereafter, he took over investigation of the offence. Muddamal samples drawn by him were sent to FSL for analysis. Remand of the accused Rammilan Pathak was obtained. Statements of persons with him in the raid were recorded. He verified at the place where the accused Mr. Pathak was working. Thereafter, as he was transferred due to his promotion on 30th August 1992, the investigation was handed over to PSI Mr. Jadeja. PSI Mr. Jadeja continued investigation till 14th September 1992 and when Mr. Kantilal Thakorlal Modi resumed duty as PI at DCB Police Station, investigation was handed over to him. He sent a writeup to Vadodara Municipal Corporation Ward officer Mr. Ravpura on 16th September 1992 about the houses under the occupancy of Gaffurkhan and Banubibi. He investigated about the scooter bearing registration number GJ-6-F-5926 at the RTO office. When Salimmiya Mustafmiya produced the said scooter on 11th October 1992, the same was seized. Following his order, PSI Mr. Ramgadhiya caught and produced the accused and he was arrested on the same day and police remand was obtained till 18th October 1992. Meanwhile, Amirbibi was arrested on 14th October 1992. Both the accused were produced in judicial custody. Thereafter, when write-up was received from Ravpura Ward Officer about the occupancy of the house, the same was kept with the record of investigation. Thereafter, certificate from FSL was received wherein muddamal was found to be "charas", the same was kept with the case papers. Muddamal samples were received from FSL on 16th October 1992. Charge-sheet was filed against the accused Gafarkhan Amirbibi, Banubibi and Rammilan, and whereas, another accused person namely Mohammad Husen @ Gabbar Gafarkhan could not be arrested, and hence, he was shown to be absconding accused in the column no.2 of the charge-sheet.