MOHMADKHAN RASULKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant Mohmadkhan (Mahmudkhan) Rasulkhan Pathan has brought under challenge his conviction under S.20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (of short 'N.D.P.S. Act') and S.66(1)(b) of the Bombay Prohibition Act, 1949 and his sentence of rigorous imprisonment for a period of ten years and fine in the sum of Rs. 1,00,000.00, in default to undergo rigorous imprisonment for one year rendered by the learned Additional City Sessions Judge, by his impugned judgment and order dated 4-1-1991 in Sessions Case No. 25 of 1990.

(2.) It is the prosecution case that pursuant to secret information received by the complainant Mr. A. S. Saiyed, Inspector, Customs (Preventive), Ahmedabad on 22- 8-1989 the proceedings were undertaken. Mr. Saiyed reduced the information into writing, placed it in a sealed cover and delivered the same to the Superintendent of Customs, Mr. P. D. Nair. Both of them then went to the Assistant Collector (Preventive) Mr. Thakur and handed over the sealed cover to him. According to Mr. Saiyed one D.R.I. Form (I) was also filled in which was scrutinised by the Assistant Collector. Two Customs Inspectors Mr. Batham and Mr. Barot were thereafter called. The matter was discussed amongst all the aforesaid officers and a raid was arranged. Mr. Saiyed went outside the office for calling Panchas, after whose arrival necessary particulars with regard to names and addresses of the Panchas were recorded and primary panchnama was prepared. Thereafter, the raiding party consisting of Superintendent Mr. Nair, Customs Inspectors Mr. Saiyed and Mr. Barot alongwith the Panchas left the Customs House in the Government car, Mr. Batham following the car on his motor cycle. They accordingly reached Isanpur Four Roads around 12-45 p.m. on the same day, namely, 22-8-1989. The appellant, referred to herein as the accused, was ultimately found standing alongwith a tin container as per the secret information received by the concerned Inspector. Customs Inspector Mr. Saiyed in the company of the two Panchas initially went to the place where the accused was standing with the container and upon inquiry having been made by Mr. Saiyed regarding contents of the tin container, the accused informed Mr. Saiyed that it contained household articles. In the meantime the Customs Superintendent Mr. Nair and other officials reached the place. Mr. Nair disclosed his identity and also that of the members of the raiding party to the accused. Upon being asked, the accused informed that he was Mohmadkhan Rasulkhan Pathan by name and upon being asked about the contents in the tin container, he stated that it was belonging to him and it contained 16 Kgs. of "Charas". It was the prosecution case that on account of rain showers Mr. Nair informed Panchas that it would not be convenient to prepare panchnama at that place. One more reason for doing so was that people were gathering at the place. The Panchas having agreed to leave the place for the Customs House they proceeded for going to Customs House accordingly. The container was placed in the dickey of motor car which was then locked. They accordingly in the company of the accused reached the Customs House, where they opened the dickey and the container was taken out in the presence of the Panchas and the accused. They all then went to the Customs House more particularly in the C.I.U. room where the tin container was placed on one table. At that time over and above the persons of the raiding party Mr. Thakur, Assistant Collector of Customs, Mr. Joshi, Inspector and other 2 to 3 officers of the Customs Department were present. Thereafter in the presence of the Panchas the container was opened. One gunny bag was taken out from the container. It was tied with red plastic string. It contained the inscription reading "909 Basmati Rice". The gunny bag was then opened and four plastic transparent bags were found therefrom, three bags were weighing 5 Kgs. each and 4th bag was weighing 1 Kg. of material. A detailed Panchnama was prepared in the presence of accused and Panchas and other officers. The samples then were taken from the material. The samples were drawn of 150 Gms. in three parts and 50 Gms. of material taken out from each of the parts was placed into covers prepared for that purpose from cloth and paper. Labels were affixed on the covers and signatures of the Panchas were taken. All the three covers were accordingly sealed and then remaining material was put back in the aforesaid 4 plastic bags, which were again placed back into the gunny bag which was tied with aforesaid plastic string and that gunny bag was once again placed into the tin container which was sealed in the presence of the accused and Panchas. A detailed Panchnama came to be prepared in presence of the accused and Panchas and other officers of the Customs Department.

(3.) It is the prosecution case that on the same day, i.e., on 22-8-1989 the statement of the accused was recorded. However, the accused absconded from the surveillance of the Customs Department resulting in a complaint being filed in the Navrangpura Police Station. Ultimately the concerned Customs Officer received the information about the accused staying in one mosque situated in village Chekhla. Upon receipt of such information Inspector of Customs Mr. Saiyed, in the company of other members of the staff went at the place where he found the accused coming out of the mosque. The accused was picked up therefrom and brought to the Customs House and his second statement was recorded. Thereafter, on 24-9-1989 the accused was arrested at about 3-00 p.m. and he was produced before the learned Chief Judicial Magistrate, Ahmedabad. The accused was then taken into the judicial custody.