SHITALPRASAD RAMYASH PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE two Criminal Appeals arise out of a judgment and order rendered by the learned Presiding Officer of Fast Track Court No.1, Ahmedabad City, in Sessions Case No. 399/2000, dated 5th August, 2002, convicting the appellants under Sections 8(c) & 21 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 Lakh each, in default, to undergo rigorous imprisonment for two years. The accused persons were given the benefit of set off by the trial Court while convicting them.

(2.) CRIMINAL Appeal No.662/2002 is preferred by original accused Nos.2 and 3; whereas criminal Appeal No.703/2003 is preferred by original accused No.l before the Trial Court. For the sake of convenience, the appellants are referred to by their original status of accused before the trial Court.

(3.) THE prosecution story, briefly stated, is that Police Inspector, State Narcotic Cell, CID Crime, Gandhinagar received a secret information around 13.00 hours on 11.10.2000 that a person aged about 25 to 27 years with thin built and wheatish complexion, wearing a khakhi pant and almond coloured full -sleeved shirt, whose name is Ramprakash Sharma, working as rickshaw driver, will be reaching the public urinal, near Haribhai Godani's Davakhana at Saraspur at about 16.00 to 16.30 hours, along with two Hindi speaking persons, named Shitla prasad and Anil in his rickshaw No.GRY -1313 with a quantity of Charas. The said officer, therefore, made an entry about the information at 13.15 hours and made a report of it in writing to his immediate superior, so also made an oral report. Thereafter, necessary implements like weighingscale, seal lak, threads, kit -box etc., were collected and P.I., Mr.Jadav, P.S.I., Mr.Rana, Head Constable, Mr.Popatlal Raval, Police Constable, Mr.Vinod Dantani and Mr. Netram Ahir, driver of government vehicle were gathered, and arranged for a raid in official vehicle No.GJ -1 -G - 2708 and started at 13.45 hours and went to CID Crime, Narcotic Cell Office, located at New Mental Compound, via. Indroda Circle, Koba Circle and Indira Bridge. Thereafter, two reputed persons were called, through Police Constable, Mr. Dantani, as Panchas, at the raid. On arrival of Panchas, their names were asked. They were informed about the secret information received and the proposed raid. Thereafter, mutual search was conducted in respect of the police personnel and the Panch witnesses and nothing adverse was found. Preliminary Panchnama in this regard was prepared and thereafter they started at about 15.15 hours and came on the road at Saraspur near Haribhai Godani's Dispensary via. Chamunda Bridge and Nutan Mill. The raiding party and the Panch witnesses were made to stand scattered so that nobody could notice them. At about 15.45 hours, auto -rickshaw No.GRY -1313, coming from Raipur Mill, was sighted as per the secret information. The said auto -rickshaw was intercepted. It was found to be driven by the person fitting the description in the secret information. The members of the raiding party reached the place, interrogated the driver about his name and were told that he was Ramprakash Mishra and was carrying two passengers in his rickshaw. The passengers, on being asked, disclosed their names to be Shitla prasad and Anil. Thereafter, the members of the raiding party introduced themselves in Hindi language and indicated about the secret information about their arrival at the place, with contraband. They were asked, if they wanted to be searched in presence of a gazetted officer or Magistrate. The persons were asked if they wanted to search the members of the raiding party, and all the three declined to take search of the members of the raiding party, or to delve into the facts. This intimation was given to the suspects in writing, and in acknowlegement thereof, they put their signatures. Thereafter, rickshaw driver, Ramprakash Mishra, original accused No.1 (appellant in Criminal Appeal No.703/2002) was searched and he was found to be carrying a plastic carry -bag containing blackish ashed material in a semi -solid state. The said material smelt of being Charas. It was tested by P.S.I., Mr. Jadav, and found to be Charas. It was then weighed and was found to weigh 1 Kg., along with the bag. Thereafter, two samples of 10 grams each were drawn from the muddamal Charas seized. Both the samples were placed in a separate plastic bag of small size. They were again put in a separate paper envelope. The samples were then sealed with heat seal after putting a slip containing signatures of Panch witnesses and the raiding officer. Thereafter, slips containing signatures of the Panch witnesses as well as accused were tied with thread and seal was affixed. The remaining quantity was also similarly sealed. Ramprakash Mishra's driving licence, which was found from his shirt pocket, was also seized.