ALAMKHAN MAHMADJAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) IN this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short), challenge is to the correctness of the judgment and order dated 8.9.2000 rendered in Sessions Case No.300 of 1998 by the learned Additional City Sessions Judge, Court No.18, Ahmedabad by which the appellant No.1 ('A -1' for short) has been convicted for the offence under Sections 20 (b) (ii), 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) and sentenced to suffer R.I. for 15 years and fine of Rs.2 lakhs i.d., S.I. for 2 years for the offence under Section 20 (b) (ii) of the NDPS Act, RI for 15 years and fine of Rs.2 lakhs i.d., SI for two years for the offence under Section 21 of the NDPS Act and RI for 15 years and fine of Rs. 2 lakhs i.d., SI for 2 years for the offence under Section 29 of the NDPS Act. It is also ordered that the sentence under Sections 20 (b) (ii) and 21 of the NDPS Act shall run without concurrence i.e., separately whereas sentence under Section 29 of the NDPS Act shall run concurrently with the sentence under Sections 20 (b) (ii) and 21 of the NDPS Act whereas appellant No.2 ('A -2' for short) has been convicted for the offence under Sections 20 (b) (ii) and 29 of the NDPS Act and sentenced to suffer RI for ten years and fine of Rs.1 lakh i.d., SI for one year for the offence under Section 20 (b) (ii) of the NDPS Act and RI for 10 years and fine of Rs.1 lakh i.d., SI for one year for the offence under Section 29 of the NDPS Act. It is also ordered that both the sentences shall run concurrently.

(2.) SINCE the facts of the case have been detailed in the judgment of the trial court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed for deciding this appeal, as disclosed from the FIR and unfolded during trial, are as under:

(3.) MR . E.E. Saiyed, learned advocate for A -1 and Ms. Madhuben Sharma, learned advocate for A -2 have assailed the judgment and order of the trial court by contending that the prosecution has examined the members of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act and, therefore, on account of non -compliance of the mandatory as well as statutory provisions of NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. It is also highlighted by them that the prosecution has not been able to successfully establish that the contraband articles which were sent to FSL were not tampered with during the course of their journey from the stage of seizing and sealing till their reaching the FSL. It is also emphatically submitted by them that the panch witness who is a rickshaw driver was under the control and influence of the investigating officer and, therefore, he has deposed as per the desire of the investigating officer and, therefore, the panchnama lost its independence and, therefore, no reliance can be placed on his testimony. It is also high lighted by them that the trial court has convicted both the accused persons under Section 29 of the NDPS Act. According to them, even if the prosecution case is believed in its entirety then also both the accused were allegedly found with the contraband articles and, therefore, they were separately tried for the offences under sections 20 (ii) (b) and 21 of the NDPS Act. Therefore, both the accused can be held liable for their independent act and hence there is no question of convicting them under Section 29 of the NDPS Act. On the aforesaid premises, it is contended by them that the prosecution has not been able to establish the guilt of the accused persons and, therefore, the impugned judgment and order passed by the trial court deserves to be quashed and set aside by acquitting both the accused. They, therefore, urged to allow the appeal.