HIMATBHAI PETHABHAI VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal as was sent to this Court through Jail is directed against the order of conviction and sentence passed by the learned Additional City Sessions Judge, Court No.9, Ahmedabad on 2 6/04/1990, in Sessions Case No.44 of 1989, whereby the present appellant, namely, Himatbhai Pethabhai Vankar was convicted for the offences punishable under sec.20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act,1985, (which will be hereinafter referred to as "NDPS Act"), read with sec.66(b) of the Bombay Prohibition Act, 1949 ("Prohibition Act" for brevity) whereby the appellant herein was sentenced to 10 years rigorous imprisonment with a fine of Rs.1,00,000.00; in default of payment of fine to further undergo rigorous imprisonment for a period of two years in addition to 10 years. No separate sentence has been awarded for the offence under sec.66(b) of the Prohibition Act and set off was directed to be given for the period of sentence undergone during the trial. The appeal was admitted on 13.9.1990 by the Division Bench and during pendency of the appeal, Shri P.M. Vyas has been appointed to represent the appellant in this Appeal by the Registry of this Court in place of one Shri N.I. Dave.

(2.) The prosecution came with the case that on 22.1.1988, at about 8.30 PM, Shri Deepak Kumar Shantilal Vyas, Police Sub Inspector, attached to the Surveillance Squad of Kagdapith Police Station, Ahmedabad was on patrolling duty with his Police Party. While he was proceeding towards Vijaynagar via Raipur Hulladia Hanuman, Kantodiya Vas, Near Ankur Textile, he received information that one person, named, Himat Pethabhai Harijan, resident of Majurgam, was to pass through that way with prohibited narcotic drug, viz. charas. Upon receipt of such information, the complainant, Shri Deepak Kumar Shantilal Vyas, Police Sub Inspector called two witnesses from the persons passing through that road and explained them the purpose for which they were called. The witnesses expressed their readiness and willingness to stand as Panch witnesses and thereupon the complainant, i.e. PSI Shri Vyas instructed his Police party to arrange for trap at the place where he received information as referred to hereinabove. Shortly thereafter, the person named Himatbhai Pethabhai Harijan was noticed coming from Kankaria side and he was intercepted. The PSI, in presence of Panch witnesses inquired his name and address, and the said person gave out his name to be Himatbhai Pethabhai Vankar, resident of Majurmgam, Laxmipura Chawl. He was subjected to search for possessing prohibited narcotic drug, viz. Charas in presence of the Panch witnesses. As a result of the search, five small pellets packed in five different plastic bags were found from the right pocket of his pant. These bags were found to contain a substance of blackish colour and on the basis of the odour of the substance, the substance was suspected to be charas. Himatbhai Pethabhai was asked as to whether he possessed any licence to possess this type of substance. He answered in negative. The PSI then prepared Panchnama with regard to the search and seizure and five plastic bags containing five pellets of the aforesaid substance weighing 15 grams, in all, suspected to be Charas were wrapped in a piece of paper, which was tied with a string. After perfectly wrapping the same, a slip bearing signatures of two Panch witnesses and that of the complainant, PSI himself, was put on the packets and was again tied and sealed properly. Care was also taken to place the sealed packet in a small tin which was also wrapped with a piece of paper and sealed properly in presence of Panch witnesses. The complainant, PSI then went to the Police Station along with the Police party, Muddamal, Panchnama and the accused; handed over the Muddamal with his report to the Police Station Officer, who received the accused, Panchnama, Muddamal, report etc. and registered the offence at Kagdapith Police Station at No.41 of 1988. Accused, Himatbhai Pethabhai was taken into custody and the sealed tin containing Muddamal was also placed in safe custody. After the report under sec.157 of the Code of Criminal Procedure, papers were given to the complainant, PSI for further investigation. The accused was produced before the Metropolitan Magistrate, Court No.12 on 23.1.1988 for taking him in judicial custody and accordingly he was taken into judicial custody. After completing investigation, charge sheet was filed on 26.4.1988. Initially, criminal case was registered at No.936 of 1988 in the Court of Metropolitan Magistrate, but trial of offence levelled against the accused being within the sole competence of the Sessions Court, Ahmedabad, the learned Chief Metropolitan, Ahmedabad committed the case to the Sessions Court and accordingly the case was registered as Sessions Case No.44 of 1989.

(3.) At the trial, the prosecution has examined the following five witnesses :