GULAM MOHAMMAD MALIK Vs. SHAILENDRA LODHA

JUDGEMENT

(1.) BOTH these appeals arise out of the judgment and order rendered by the Ld. Addl. Sessions Judge, 4th Fast Track Court, Sabarkantha at Himatnagar, [for short 'the Ld. Trial Judge'] on 9/3/2004 in NDPS Case No. 1 of 2002. By virtue of the impugned judgment and order dated 9/3/2004, the Ld. Trial Judge was pleased to convict original accused - Gulam Mohammad Malik for the commission of offence punishable under section 20 (B) and section 29 read with section 8[c] of the Narcotic Drugs and Psychotropic Substances Act [for short 'ndps Act'] and the accused was sentenced to undergo rigorous imprisonment [ri] for 10 years and fine of Rs. 1 lac, in default of payment of fine, to further undergo RI for one year. Being aggrieved and dissatisfied with the impugned judgment and order recording conviction for the aforesaid offences, the original accused Gulam Mohammad Malik preferred Criminal Appeal No. 683 of 2004 challenging the legality and validity of the impugned judgment. The Criminal Appeal No. 1319 of 2004 came to be preferred by the State of Gujarat under section 377 of the Code of Criminal Procedure [for short 'cr. P. C. '] for enhancement of sentence. As both these appeals arise out of the common judgment and order rendered by the Ld. Trial Judge and common arguments were advanced on behalf of both the parties in connection with both these appeals, these appeals are being disposed of by the common judgment.

(2.) THE prosecution case, in nutshell, is as under :-

(3.) IN connection with Criminal Appeal No. 683 of 2004 preferred by the convict accused, learned advocate Ms. S M Ahuja submitted that the impugned judgment and order delivered by the Ld. Trial Judge convicting the accused for the offences charged against him, is contrary to law and facts on record. It was vehemently submitted that except so called confessional statement of the accused recorded under sec. 67 of the NDPS Act, there is no evidence worth the name to connect the accused with the crime. That no contraband article was seized from the possession of the accused nor such substance was seized at his instance. That even in connection with whatever alleged to have been stated by the accused in his confessional statement, the prosecution agency did not investigate on that line. Neither owner nor the driver of the truck was arrested in connection with this offence. Persons whose names the accused alleged to have referred in his statement, were not arrested. That in the so called seizure panchnama, simply it is stated that one visiting card was seized, but the telephone numbers and other particulars said to have been mentioned in the visiting card are not recorded in the seizure panchnama. That the mandatory requirements provided under the NDPS Act regarding search, seizure, packing and sampling of the contraband substance have not been complied with. That the NCB Officer Mr. Bhalla in his deposition though stated that he had forwarded information which he received, to his superior officer, the sealed cover in which said information is said to have been forwarded, is not produced by him. Only forwarding letter is produced. That the complainant filed private complaint in the Sessions Court. Before framing charge, the Ld. Trial Judge did not record any evidence for the purpose of framing charge and straightway charge was framed. Thus, proper procedure of trial is not followed. That on the packets containing samples of the contraband substance, slips containing signatures of the panch have not been affixed. That it is alleged that o 14-15/1/2002 the accused had contacted his counter parts in Jammu and Kashmir by telephone, but the fact is that from 14th morning the accused was arrested in connection with the offence in Mumbai and was in custody of NCB Mumbai. Therefore, he did not use his phone, but someone else used the phone. No investigation is carried out on that line. Learned advocate Ms. Ahuja submitted that, however, it is true that the accused did not retract his confessional statement, but it was not safe to convict the accused for such serious offence solely relying upon the confessional statement. Nothing corroborative evidence was collected by the prosecution to support the confessional statement. That only on the basis of presumption and assumption the accused came to be implicated in this case. That no investigation was carried out even to know as to whether whatever stated by the accused in his so called confessional statement was true or not. Therefore, it is submitted that the appeal may be allowed and the impugned judgment and order rendered by the Ld. Trial Judge be set aside and appellant - accused be acquitted.