KALUBHAI LALABHAI MAVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals arises from common judgment as both the appellants were the accused of the same trial, both the appeals are heard together.

(2.) BOTH appeals are directed against the judgment and order, delivered by Special Judge, 3rd Fast Track Court, Dahod, on 14th of March, 2005, in Special Case No. 7 Of 2004 (New) i.e. Special Case No. 3 of 2004 (Old), whereby both the appellants herein came to be convicted by the Trial Court for the offences punishable under Sections 15, 18 to read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and each of the appellant has been sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1 lac, in default, to undergo simple imprisonment of one year.

(3.) AS per the brief prosecution case, on 18th of March, 2004, Shantilal Kalabhai Garasiya was serving as Senior PSI at Dahod Police Station. On 17th of March, 2004, at about 23.05 hours, he was in night patrolling along with his staff - Head Constable Mohanlal Kalidas, Police Constable Kiritsinh Keshrisinh, Sanjaysinh Mahavirsinh, etc and on 18.03.2004 at about 1.15 hours they reached near the place known as Padav Circle. Election of Parliament was near and, therefore, the Circle being border between the States of Gujarat and Madhya Pradesh, this police party was checking all the vehicles coming from M.P. At that time, one more police party of Andhariya Police Station, in mobile van, A.S.I. Mr. Kadkiyabhai along with his staff were also reached at the spot. They found that, at 1.30 hours, one S.T. Transport Bus, bearing Registration No. GJ -18 -V -7944 came there from Indore and was going to Ahmedabad, was checked. Roof of the bus was checked by ASI Kadkiyabhai and Police Constable Badabhai. There were cotton bags on the roof and those bags were opened and it was inquired that those bags belong to whom. Both the accused stated that those bags were theirs. It was ultimately found that there were powder of 'poppy straw' in those bags and, therefore, Kiritsinh, Police Constable was sent to call panchas. The Divisional Police Superintendent Mr. G.K. Solanki was informed by complainant Shantilal Kalabhai Garasiya on mobile phone and Mr. G.K. Solanki reached immediately at the spot. On inquiry, the accused gave their names and addresses, but they had no pass or permit for the powder of poppy straw which they were carrying in bus. Those bags were taken to nearby shop and one shopkeeper Hakimbhai Gulambhai weighed the said bags, and in all, those bags were weighing 221 kgs. 550 grams substance was taken out from the bags which was put into a glass jar and was sealed with the seal of PSI, Dahod Town Police Station in the presence of panchas and signatures of panchas were obtained. A panchnama was drawn as per the procedure and Shantilal Kalabhai Garasiya gave a complaint before Dahod Police Station, which was registered. The accused were arrested by the complainant. Thereafter, investigation was handed over to one PSI Mr. M.V. Gadhvi. The muddamal was sent to Forensic Science Laboratory and charge sheet came to be filed by second Investigating Officer Gulam Mahmad Musheer Shaikh, who is examined as PW -6 at Exhibit 17. Trial Court framed charges against the accused vide Exhibit -2 and both the accused pleaded not guilty and, therefore, prosecution examined six witnesses as under: