SUMARKHAN SIDIQKHAN SINDHI Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS Criminal Appeal under Section 374(2) of the Cr.P.C. is directed against the judgment and order of conviction and sentence passed against the present appellant by the Addl. Sessions Judge, District Kheda at Nadiad in Sessions Case No. 156 of 1989 whereby the appellant-Sumarkhan Sidiqkhan Sindhi, resident of Dentami (Rajasthan) has been convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (which will be hereinafter referred to as 'the NDPS Act') and sentenced to 10 years R.I. with a fine of Rs. 1,00,000/- on 8.8.1990. It is pointed out by the learned Counsel for the appellant that the appellant was in jail during the course of trial from 24.2.1989, i.e., the date of his arrest and is serving the sentence at present in Sabarmati Jail of Ahmedabad. On 23.9.1997 an order was passed in Misc. Application No. 5276 of 1997 that this Appeal is to be heard with Criminal appeal No. 1037 of 1990 and accordingly this Criminal Appeal No. 828 of 1990 was listed for final hearing in the Board before us on 2.2.1998 at item No. 24. On the request of the learned Counsel for the appellant, the matter was taken out of turn. However, the record of the Criminal Appeal No. 1037 of 1990 shows that it is not a ready matter. The Criminal appeal No. 1037 of 1990, which is directed against the acquittal of other co-accused persons, cannot be heard unless the service is complete. The learned Counsel for the appellant submits that since the present appellant is serving the sentence since long, this Appeal may be heard. Accordingly the matter was taken up for final hearing.

(2.) THE facts leading to the present appeal may be succinctly and briefly narrated as under:

(3.) The learned Chief Judicial Magistrate at Nadiad committed the case to the Court of the learned Addl. Sessions Judge, District Kheda at Nadiad, who discharged accused No. 6 on 11.5.1990 and the appellant and 4 other accused persons were charged to face the trial as they denied the charge in Sessions Case No. 156 of 1989. All the 5 accused persons were charged for the offence under Secs. 21 and 29 of the Act. Whereas the other four accused persons, i.e. Haji Kadar Manji, Anwar Salim Sindhi, Hejam Hamla and Ranjikant Bhogilal Patel have been acquitted, reference is being made to the charge which was framed against the present appellant on 31.5.1990 under Secs. 21 and 29 of the Act. In the trial, following 11 witnesses in all were examined by the trial Court : P.W. No. 1 Shri M.S. Shah, Superintendent, Central Excise at Ahmedabad. P.W. No. 2 Shri Yogeshkumar, a Panch witness. P.W. No. 3 Shri Kiritkumar, a Panch witness. P.W. No. 4 Shri Kashibhai, a Panch witness. P.W. No. 5 Shri Chhotabhai, again a Panch witness. P.W. No. 6 Shri Hiteshbhai, who is the son of the owner of the premises wherefrom the alleged contraband substance was recovered. P.W. No. 7 Shri Krishnvadan, an Inspector, Central Excise. P.W. No. 8 Shri Yakubhai, Inspector, Customs. P.W. No. 9 Shri Mahendra Balchandra Tripathi, Inspector from Central Excise Inspectorate (Preventive). P.W. No. 10 Shri Mahendrakumar Ambalal Shah, Excise Superintendent. P.W. No. 11 Shri Suresh Balkrishan Sud, Customs Inspector. Three, out of the four Panchas, i.e. P.W. Nos. 2, 3 and 4 were declared hostile. The other prosecution witnesses have supported the story of the prosecution but it is pointed out by the learned Counsel for the appellant that P.W. No. 5, who was a Panch witness, has not supported the prosecution story. However, he has not been declared hostile.