SHIVRAJSINH RAMSINH CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals have been preferred by the appellants under Section 374 of the Code of Criminal Procedure, 1973 as well as under Section 36 (B) of the Narcotic Drugs and Psychotropic Substances Act ("the Act" for short) against the judgment and order rendered by Additional Principal Judge, Court No. 2, Ahmedabad City on 29. 12. 2006 in Special Case No. 335 of 2004 whereby both the appellants being accused Nos. 1 and 2 of the said Sessions Case came to be convicted by the trial Court for the offence proved against them under Section 20 (b) (ii) (B) and each of the appellant was sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. 1 lakh, in default, to undergo imprisonment of one year. Accused No. 1 Abdul Rahim Maulasab Pathan has preferred Criminal Appeal No. 1395 of 2007, whereas accused No. 2 Shivrajsinh Ramsinh Chauhan has preferred Criminal Appeal No. 608 of 2007. The third accused of the case i. e. Istekhar Husain @ Bhaiyaji s/o Sabir Husain Ansari came to be acquitted by the trial Court. Against which, there is no appeal against the acquittal.

(2.) SINCE both the appeals have arisen from the common judgment and order, both the appeals are heard together.

(3.) AS per the brief facts of the case, Police Inspector Mr. M. J. Pathan of NDPS Cell, CID Crime, State of Gujarat, Gandhinagar on 12. 8. 2004 was at Meghaninagar in his office at zone O-16. At 10. 00 O'clock, he received the private information that two persons were likely to carry quantity of charas for the purpose of selling near Chandola Lake, Shah-E-Alam at about 3. 00 to 4. 00 p. m. The description of those persons were also received by the Police Officer in private information. After preparing the written report and submitting the same to the Deputy Superintendent of Police, NDPS Cell, a party was prepared for arranging raid. Two panchas were selected and all the procedure was followed. The panchnama of the first part was prepared and about after 13. 45 hours, this police party reached near Shalimar Cinema and after halting the vehicle down there, all the members of the raiding party, on foot reached near Dargah in surveillance and they took their position. The accused Nos. 1 and 2 were spotted; their names were asked. Section 50 procedure was carried out and from their search, from accused No. 1 Abdul Rahim Maulasab Pathan from his handkerchief in the pocket of jabhbha which he was wearing, one plastic bag was found and from that plastic bag charas was found, which was of about 827 gms in quantity after weighing. Due sample was obtained from this charas of 25 gms and muddamal was sealed properly. While from the possession of accused No. 2 Shivrajsinh Ramsinh Chauhan from the pocket of his pant, from one plastic bag small piece of charas was found which was weighing about 129 gms. The FSL officers were present and prima facie, substance was found to be charas. The complaint in this respect came to be filed and after investigation, chargesheet came to be filed against in all three accused. The prosecution examined 10 witnesses because all the three accused pleaded not guilty. The prosecution also produced on record voluminous documentary evidence to prove its case. Thereafter, further statement of each of the accused was recorded under Section 313 in which the defence of accused Nos. 1 and 2 was that while they were taking tea in the hotel, they were arrested and they were innocent. The prosecution as well as defence were heard and ultimately, learned trial Judge came to the above conclusion and hence these appeals.