SONU SATISH SHARMA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two appeals are preferred by original accused Nos. 2 and 3 respectively against the judgment and order dated 27th March 1998 delivered by the Special Judge under the NDPS Act and the Addl. Sessions Judge, Greater Bombay in NDPS Special Case No. 583 of 1996 whereby both these appellants, original accused Nos. 2 and 3 were convicted under section 8 (c) read with section 20 of the NDPS Act and sentenced to RI for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer RI for three months.

(2.) IN all there were three persons accused in the above Special Case in respect of two seizures of Hashish and arms and ammunitions which took place on 31st August 1996 and 1st September 1996 at two different places in the City of Bombay. On 31st August 1996 160. 925 K. Gms. of Hashish along with one pistol, 306 live cartridges and five empty magazines were seized from the shop called Xerox Corner situated at 357/a, Vakilwala Building, Samuel Street, Mumbai 400 009 where the original accused No. 1, who was acquitted, was present. Pursuant to the information given by accused No. 1, 5. 077 K. Gms. of Hashish was seized each from the persons of accused Nos. 2 and 3 i. e. the present appellants near the sign board of Mumbai Malvahatuk Tempo Mahasangh, Sewri Railway Phatak, Sewri Cross Lane, Mumbai 400 015 near Datar Medical Store. Thus the total quantity of Hashish seized from the three accused persons was 171. 079 Kgs. First of the above seizures was made pursuant to the information received by Sr. P. I. Dhavle P. W. 8 on 31st August 1996 at about 1. 45 p. m. i. e. 13. 45 hours through his informant that huge quantity of Hashish had been stored at Xerox Corner and was likely to be disposed of. P. I. Dhavle reduced the said information into writing in information book which is at Exhibit 27 and communicated the same to D. C. P. and A. C. P. i. e. his immediate superiors. P. I. Dhavle asked P. S. I. Gokhale P. W. 1, attached to the Narcotic Cell, to produce two persons to act as panch. Accordingly two panchas were called who were informed about the purpose for which they were called. Thereafter pre trap panchanama was prepared in the office and the station diary entry was made at Sr. No. 18 which is at Exhibit 31. Thereafter the raiding party consisting of the Police Officers, constables and panch witnesses left the Narcotic Cell in two vehicles at 17. 50 hrs. They reached the Xerox Corner when original accused No. 1 was present there. His name and particulars were asked and he was informed about the information received by the officers about the concealment of Hashish. Accused No. 1 was also told about his right to be searched in the presence of Magistrate or a Gazetted Officer if he so desired and that Sr. Police Inspector Tayde and P. I Dhavle, P. W. 8 and P. I. Rade were the Gazetted Officers present at the spot. The accused No. 1 having declined the offer the shop was searched and the aforesaid contraband consisting of 160. 925 K. Gs. of Hashish and one pistol and cartridges etc. were found which were seized under the panchanama. All the seized contraband was taken to the police station along with accused No. 1. The samples of Hashish were taken which were sealed. F. I. R. came to be lodged which is at Exhibit 16. The panchanama of seizure is at Exhibit 18. The offence was registered under C. R. No. 129/96 pursuant to the F. I. R. lodged by P. W. 1 Gokhale who was a member of the raiding party.

(3.) PURSUANT to the interrogation of the original accused No. 1 in the morning of 1st September, 1996 at about 8-30 a. m. P. W. 8 P. I. Dhavle learnt that the present appellants i. e. accused Nos. 2 and 3 used to meet each other every Sunday between 10. 30 and 11. 00 a. m. near the Datar Medical Stores, at Gate No. 7, Arab Building and if they knew about the said information they might abscond and the contraband in their possession may not be traced. He had also given description of these two accused persons. That information was reduced to writing in information book at Sr. No. 66 and is Exhibit 38. Copy of the said information reduced to writing was sent to superior officer. Pursuant to the direction given by P. I. Dhavle, P. S. I. Gokhale, P. W. 1 procured two panchas who were told about the purpose for which they were called. Pre trap panchanama was prepared in the office after making station diary entry at Sr. No. 5 which is Exhibit 40. Police party then proceeded to Sewri Railway Phatak along with the panchas. After they reached near Sewri Railway Phatak and after tracing Datar Medical Store, trap was arranged. Around 11. 45 a. m. on the said date initially accused No. 2 resembling the description given by accused No. 1 came from Sewri Cross Road holding two bags in his hand. He waited near Datar Medical Store. In a short time another person i. e. accused No. 3 resembling the description given by accused No. 1 came there from Railway Cross Road side and met accused No. 2. Accused No. 2 handed over one of the bags he was carrying in his hand to accused No. 3 and thereafter both of them started going towards Sewri Railway Phatak. When they reached near Mumbai Malvahatuk Tempo Mahasangh Board P. I. Dhavle gave signal to the raiding party and accordingly the members of the raiding party surrounded the said two accused. P. I. Dhavle disclosed his identity to the accused persons and after enquiring about their names and addresses they were informed about the information received by the police about them regarding possession of Hashish. They were told that police wanted to take their personal search as they suspected that they were in possession of Hashish and were informed that they had a right to get themselves searched in the presence of any Gazetted Officer or a Magistrate. They were further informed that Sr. P. I. Dhavle himself was a Gazetted Officer. Both the accused declined the offer and showed their willingness to get themselves searched by the police. On being asked by P. W. 8 Dhavle both the accused gave writings which are at Exhibits 41 and 42 waiving their right to be searched in the presence of a Gazetted Officer or a Magistrate. On search each of the two accused were found holding one cloth carry bag which was containing transparent polythene packet with brownish black coloured sticky substance in the form of five slabs in rectangular shapes. All the slabs were identical. When some substance from the said slab was tested on kit it gave positive result for Hashish (Charas ). Each slab was weighed and was found to be 1. 025 kgs. in weight. Two samples of 24 grams each were drawn from each of the packets which was kept separately. The bulk was marked "p" but the sample packets were marked as "p-1" and "p-2" in respect of accused No. 2 and "t", "t-1" and "t-2" in respect of contraband seized from accused No. 3. Apart from the said contraband carried in the bags, on personal search a sum of Rs. 200/- was found with accused No. 2 and sum of Rs. 120/- was found with accused No. 3. The amount of Rs. 200/- was taken charge of from accused No. 2 and marked "r" while his cloth bag was marked "s". Sum of Rs. 120/- recovered from accused No. 3 was marked as "u" and the empty cloth bag recovered from accused No. 3 was marked as "v". All the aforesaid seizures were affixed with labels bearing signatures of panch witnesses counter signed by P. W. 8 Dhavle and taken charge of by him. Both the accused declined to put their signatures on the above exhibits. They were put under arrest after explaining to them the grounds of arrest. Panchanama of seizure was drawn which is at Exhibit 20. The same concluded at 14-10 hrs. on that day. The accused along with the seized contraband were brought to the police station and station diary entry was made at Exhibit 45. The special report of search seizure and recovery was forwarded to the D. C. P. on 1-9-1996 which is at Exhibit 46. The seized quantity of first raid was deposited with Sr. P. I. by memo (Exh. 34) and the seized contraband of the second raid was deposited with him under Memo (Exh. 43 ).