KAMLESH PARMANAND GANGWAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant along with two other persons was charge-sheeted for having committed offences punishable under Secs. 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short) by Shahibag Police Station, Ahmedabad and was tried, therefore, by the learned against the order of conviction and sentence passed by Addl. Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 152 of 1991 dated 15-5-1993. Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur for the same. The learned Additional Sessions Judge recorded the judgment and order on 15-5-1993 in Sessions Case No. 152 of 1991 recording conviction of the appellant for the said offence and sentenced the appellant to undergo R. I. for a period of 15 years and imposed a fine of Rupees one lac and directed that in case of default in payment of fine, he shall further undergo R. I. for two years. The learned Additional Sessions Judge acquitted the other two persons who were chargesheeted. Being aggrieved by the said judgment and order, the appellant has preferred the present appeal.

(2.) Short facts of the case are that on 31-5-1991 one Ravikumar Saigal approached Shahibag Police Station with an information that he was serving with the military force and he was directed by his JCO Subedar Ramsingh to intimate the Police that one Chunilal Mathurdas Gadhia who is serving in army has intimated that two persons are present in Yadunath Family Quarter No. 550/2 and they are, possibly possessing opium, charas and revolver. He gave this information in writing and on the basis of that information, the P.S.I. who was also in charge of the Police Inspector of Shahibag Police Station informed his official superior officer, summoned two panch witnesses and after his immediate superior- Superintendent of Police came to the police station and proceeded for conducting the raid at Yadunath Family Quarter No. 550/2 which was allotted to Gadhia Chunilal Mathurdas. He also directed another police official to summon a goldsmith to facilitate the weighing of the contraband seized, if it is found. He further directed to summon a personnel from Forensic Science Laboratory (F.S.L.) for preliminary examination of the material that may be seized to ascertain the possibility of that material being a narcotic drug or a psychotropic substance. When they reached the quarters, they found that the person who was allotted the said quarter, viz., Gadhia Chunilal Mathurdas was present. Some of the army persons were also present. After the team reached there, Gadhia Chunilal Mathurdas shouted the name of the present appellant asking him to open the door; whereupon he opened the door, the team entered the house, searched his person and found about 5 gms. of charas from his personal possession, i.e. out of the pocket of his shirt. Two keys were found from the pocket of his pant. The keys were that of the suit case which was lying near the cot and upon opening of the suit case, contraband charas weighing about 2130 gms. was found. The charas that was found was in the nature of sticks 565 in number. One more person was also found sleeping in the house. The person who was summoned from the Forensic Science Labouratory (F.S.L.) Mr. Devendra Dave, after conducting preliminary examination opined that the material seized both from the person of the appellant as well as from the suit case primarily appeared to be contraband charas; whereupon the contraband was seized after following the procedure of sampling and sealing. The muddamal was then sent to the police station which was kept intact by the crime writer head constable of Shahibag Police Station and was ultimately sent to F.S.L., Ahmedabad through Kanji Raiji writer to the P.S.I.. The F.S.L. report ultimately revealed that the material seized from the pocket of the shirt of the appellant and the suit case was contraband charas. The police ultimately, therefore, charge-sheeted the appellant, the person who was sleeping in the house at the time when the raid was conducted and Gadhia Chunilal Mathurdas who had informed his superiors about the possibility of the appellant and the other person possessing opium, charas, ganja etc.

(3.) When the matter came up for trial before the Additional Sessions Judge, Ahmedabad (Rural), the accused person pleaded not guilty and expressed their desire to face the trial. The trial was, therefore, proceeded with and the learned Additional Sessions Judge considering the evidence adduced by the prosecution came to the conclusion that the prosecution had successfully proved the case against the appellant who was accused No. 2 before the learned Additional Sessions Judge and therefore, convicted him for the offences under Secs. 22 and 23 N.D.P.S., Act and imposed sentences as narrated above. The learned Additional Sessions Judge also came to the conclusion that the prosecution had failed to establish the guilt against accused Nos. 1 and 3 therein and ultimately acquitted them. It is this judgment and order of the learned Additional Sessions Judge dated 15-5-1993 passed in Sessions Case No. 1523 of 1991 which is the subject-matter of challenge.