MUKESH NATVARLAL MODI Vs. H S BAROT

JUDGEMENT

(1.) These two appeals have been preferred by original accused Nos. 1 and 2 of Sessions Case No. 259/87, who, at the end of the trial, have been convicted by the learned City Sessions Judge, Ahmedabad, for offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). Accused No. 1 was convicted on the count of purchase of brown-sugar and was sentenced to suffer 10 years R.I. and to pay a fine of Rs. 1 lac indefault to undergo further R.I. for one year. The said accused was also convicted on the count of being in possession of brown-sugar and was sentenced to suffer R.I. for ten yeas and to pay a fine of Rs. 1 lac indefault to undergo further R.I. for one year. The learned trial Judge ordered the substantive substances imposed upon accused No. 1 on the above counts to run concurrently. Accused No. 2 was convicted for the offence punishable under Section 21 of the NDPS Act for selling brown-sugar to accused No. 1 and was sentenced to suffer R.I. for ten years and to pay a fine of Rs. 1 lac and in default to undergo further R.I. for one year.

(2.) As both these appeals arise out of the judgment and order of conviction and sentence passed by the learned City Sessions Judge in Criminal Case No. 259/87, we have heard both these appeals together and are being disposed of by this common judgment.

(3.) The prosecution case, in brief, can be stated as under : On June 6, 1987, Mr. A.A. Maulvi (P.W. 2) the then Inspector of Customs (Preventive), Ahmedabad, was contacted by an informant to give him some information. Mr. Maulvi thereafter contacted Mr. H.S. Barot (PW 1) the then Superintendent of Customs with the informant. The informant gave information to Mr. Barot to the effect that accused No. 1 has in his house brown-sugar or heroin. On receiving such information Mr. Barot prepared a record of that information and put the same in an envelope, which was sealed and passed on that sealed envelope to Mr. H.D. Desai, Assistant Collector of Customs (Prevention). After certain discussion with Mr. H.D. Desai regarding the modality of carrying out the raid at the house of accused. No. 1, a decision was taken to carry out the raid in the morning of June 7, 1987. Accordingly at about 6.00 a.m. on June 7, 1987, Mr. Barot, Mr. Maulvi and Mr. R.N. Rathod (PW 3) the then Inspector, assembled at the Customs House, Ahmedabad. Mr. Barot prepared and issued a search warrant in the name of Mr. Maulvi ordering and authorising him to search the house of accused No. 1. Under the direct supervision of Mr. Barot, it was also decided to accompany the raiding party. Mr. Barot instructed Mr. Maulvi to arrange for and to take with him two Panch witnesses. The raiding party proceeded in two motor vehicles towards the house of accused No. 1. On way to the house of accused No. 1, Mr. Maulvi, from near Jamalpur Gate, summoned two Panch witnesses and took them with him in the car. The members of the raiding party assembled at a short distance away from the house of accused No. 1, which is situated on the first floor of bunglow No. 1 Ranchhodrai Society at Gordhanwadi Tekra. Mr. Maulvi showed the search warrant to accused No. 1 and obtaned his signature thereon and the endorsement about the execution of search warrant was also made thereon and the signature of the Panchas were also obtained on that document. Mr. Maulvi, as Searching Officer, has also put his signature thereon. Accused No. 1 was informed about the purpose for which the party had approached his house. He was also informed that if he so designed, he would search the persons of the members of the raiding party to which accused No. 1 showed no inclination. At the time of the search of the house of accused No. 1, other members of the family of accused No. 1 viz. his father Natverlal, his wife Alkaben and his wife's sister Deepaben and two minor children were present. When the search was carried out in the first room on the drawing room of the house, nothing incriminating was found therefrom. However, when the second room or the inner room was searched, from a top of a cupboard, from a hollow space between the top of the cupboard and the loft above it, the raiding party recovered 25 sachets or 25 small polythene bags containing brown powder. On being asked about these sachets by the raiding party, accused No. 1 stated that those sachets contain brown sugar or heroin. From that inner room, three documents (1) a communication from the Telephone Department addressed to accused No. 1 in connection with transfer of his telephone from his shop to his house, (2) a telephone bill and (3) a bill issued in the name of accused No. 1 by a grain merchant, were also attached. Out of 25 sachets containing brown powder, one was opened and the powder containing therein was weighed. The powder weighed about 3 grams. The empty sachet weighed one gram. The powder was then replaced in the sachet which was then repacked. The remaining 24 sachets were individually weighed together with the powder they contained and each of those 24 sachets with the powder weighed about 4 grams. Out of 24 sachets, three were sorted out as samples. Each one of these three sachets was placed in a separate brown coloured envelope. On those brown coloured envelopes, necessary packing slips were affixed containing the description of the case, and the contents. Below that description, signatures of accused No. 1 and the Panchas were obtained and Mr. Maulvi put his signatures thereon as a Seizing Officer. By means of packing slips thus prepared, the three envelopes were packed and were properly sealed with sealing was using the brass seal of the Customs Office. the remaining 22 sachets were then placed in a plastic bag which was put in a box or a carton. That carton was wrapped in a news paper and on that news paper wrapping a packing slip containing the description of the case and the contents and bearing the signatures of the Panchas, accused No. 1 and Mr. Maulvi was affixed. The carton was thereafter packed by means of cotton strap and was properly sealed by means of sealing wax, using the brass seal of the Customs Department. A panchnama of all these facts, that took place and transpired at the house of accused No. 1 was drawn at his house. Thereafter Mr. Barot and members of the raiding party came to the Customs House taking accused No. 1 with them after instructing father Natverlal and Alkaben-the wife of acused No. 1 to follow them and to come to the Customs House. At the Customs Office, Mr. Barot recorded the statements of Natverlal and Alkaben under Section 67 of the NDPS Act. Mr. Barot thereafter started informal interrogation of accused No. 1 with a view to know the source of 25 sachets of brown-sugar, which were recovered from the house of accused No. 1 and accused No. 1 stated that he has purchased the brown-sugar from accused No. 2, whose name and address were also given to Mr. Barot.