STATE OF GUJARAT Vs. BABARKHAN MUNIRKHAN PATHAN

JUDGEMENT

(1.) BOTH these appeals arise out of a judgment and order rendered by learned Additional Sessions Judge, Court No. 5, Ahmedabad, City on 23. 04. 2004 in Sessions Case No. 219 of 2002, whereby the learned trial Judge recorded the conviction of the appellant in Criminal Appeal No. 252 of 2009, who was the original accused in the aforesaid Sessions Case for the offence punishable under Section 21 r/w Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and was awarded the sentence to undergo R. I. for 10 years and fine of Rs. 1 lac and in default of payment of fine, R. I. for 1 year. 1. 1 The State of Gujarat, feeling aggrieved by the sentence awarded by the trial Court, preferred Criminal Appeal No. 1474 of 2004 under Section 377 of the Code of Criminal Procedure for enhancement of sentence. The original accused challenged his conviction by preferring Criminal Appeal No. 252 of 2009 under Section 374 of the Code of Criminal Procedure. Therefore, for the sake of convenience, the appellant in Criminal Appeal No. 252 of 2009 and respondent in Criminal Appeal No. 1474 of 2004 shall be hereinafter referred to as the, "accused person".

(2.) THE prosecution case as unfolded during the course of trial is that Mr. P. V. Kotwal, Police Inspector, State Narcotic Cell, CID Crime, State of Gujarat on 13. 04. 2002 at about 16. 00 hrs. received a secret information that the accused person Babarkhan Munirkhan Pathan would be carrying contraband substance at any time between 09. 30 am to 10. 30 am. On 14. 04. 2002 and would come to platform No. 12 of Kalupur Railway Station of Ahmedabad and that he would be meeting one person near one telephone poll situated near the office of Railway Recruitment Board. The information further contained the detail that the contraband substance is brown sugar weighing about 1 kg. to 2 kg. The information further reveal the fact that the contraband substance would be concealed in two pairs of chappals. P. I. Mr. Kotwal reduced into writing the information and sent the information to District Superintendent of Police, In-charge of State Narcotic Cell, Gandhinagar vide his letter Exh. 15.

(3.) LEARNED trial Judge framed charge against the accused at Exh. 2, to which he did not plead guilty and claimed to be tried. Thereupon, the prosecution examined in all 6 witnesses and produced necessary documentary evidence. After the prosecution concluded its evidence, the learned trial Judge recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure and the accused in his further statement denied generally all the allegations leveled against him by the prosecution and filed a written statement in support of his further statement and stated that his brother was to marry a girl in Ahmedabad and therefore, on 13. 04. 2002, he had come to Ahmedabad to deliver Rs. 10,000/- by way of marriage expenses and he stayed up to 05. 00 pm and at that time, one person met him and told the accused that he was to pass some information about the girl to the accused and told the accused to meet him on next day on platform No. 12 of the Railway Station. On the next day, at about 10. 00 am, the accused went to platform No. 12 of the Railway Station and he met that person, who was holding one bag in his hand. The person, who was holding the bag, put the bag on platform and requested the accused to keep watch over the bag, since he was going for refreshment. That man did not turn up, despite the fact that the accused waited for half an hour and at that time, police party came near him and falsely implicated him in this case. The accused in his further statement requested the trial Court that the accused desires to examine defence witnesses. The said request was granted and the accused examined 5 defence witnesses in this case.