STATE OF GUJARAT Vs. TALABHAI VERSIBHAI

JUDGEMENT

(1.) This acquittal appeal arises from the judgment and order dated 31/3/1993 rendered bythe Ld. Addl. Sessions Judge, Rajkot in Sessions Case No. 83 of 1992, whereinthe respondent (hereinafter referred to as 'the accused') Tulabhai Versibhai (Talabhai Versibhai) came to be charged with the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") for having been found in possession of 800 grams of green leaves of Bhang at around 12.15 p.m. (afternoon hours) of 31/5/1992 near Ranchhod Bapu Ashram, Kuvadava Road, City of Rajkot. The accused pleaded not guilty to the charge exh. 1 and at the conclusion of trial he asserted that a false case was filed against him. Upon appreciation of evidence the Ld. Adddl. Sessions Judge came to the conclusion that the prosecution has not established the guilt of the accused beyond reasonable doubt in asmuch as the evience of Panch witness Rasikbhai could not be said to be the evidence of an independent witness. The Ld. Addl. Sessions Juddge has also referred to section 54 of the NDPS Act and finding that there was no seal of police station officer and also finding that such a seal was required under the said provision of the NDPS Act, held that non-compliance of the said provision would be fatal to the prosecution case. He finally observed that report exh. 21 sent by the P.S.I. Mr. Jadeja to the superior officer was not proved to have been either sent at all or promptly sent as required u/S. 57 of the NDPS Act. In the ultimate analysis the Ld. Addl. Sessions Judge has banked upon the panch witness Rasikbhai being not an independent witness as he appeared as a Panch witness on as many as 30 occasions for rendering the acquittal in question. The State has subjected this acquittal judgment and order of the Ld. Addl. Sessions Judge to challenge in this acquittal appeal in which at the initial stage leave was granted and the responent accused was directed to be released on his furnishing surety in the sum of Rs.5,000.00. The accused remained in jail as he could not furnish the surety and, therefore, by virtue of our order dated 18/10/1999 this appeal was placed for final disposal.

(2.) At the outset Mr. K.P. Raval, Ld. A.P.P. submitted before this Court that even if this acquittal appeal succeeds, the accused would be liable for punishment u/S. 20(b) (i) of the NDPS Act and the maximum punishment prescribed thereunder is imprisonment for a term which may extend to five years. Mr. raval fairly submitted that the accused had already undergone that much sentence in view of the fact that he could not furnish bail/surety in the sum of Rs.5,000.00 as directed by this Court. He, therefore, submitted that appeal needed immediate hearing.

(3.) Accoringly, we have heard the Ld. A.P.P.for the appellant State and the learned advocate appearing for the accused. We have also heard Mr. A.M. Dagli, learned advocate, amicus curie.