SALIM JAMIL SHAIKH Vs. NARCOTICS CELL

JUDGEMENT

(1.) BOTH these appeals challenge the order of conviction and sentence passed by the learned Special Judge (NDPS), Greater Mumbai, thereby convicting the appellants (original accused nos.1 & 2) for offences punishable under section 20(b)(ii) of the NDPS Act and sentencing them to suffer R.I. For ten years with fine of Rs.1,00,000/- and in default of payment of fine, further imprisonment for six months and further convicted the accused no.2 for the offence punishable under section 25 of the said Act and sentenced him to suffer R.I. for ten years and fine of Rs.1,00,000/- and in default of payment of fine, further simple imprisonment for six months.

(2.) THE prosecution case in brief is as under:-

(3.) MR.Merchant, the learned counsel appearing on behalf of the appellants-accused, submitted that insofar as accused no.1 Salim Jamil Shaikh is concerned, the only evidence against him is that he was in the room when the raiding party raided the premises. He, however, submits that the said evidence is not sufficient so as to convict the accused for the crime in question. He relies in this respect on the judgment of the apex Court in the case of Ismailkhan Aiyubkhan Pathan v. State of Gujarat (2000 SCC (Cri.) 1241). He further submits that insofar as the accused no.2 is concerned, there is no evidence at all so as to establish the complicity of the accused with the crime in question. He submits that the name of the accused no.2 is Mohamed Husain Usman Gani Shaikh. It is submitted that the alleged agreement on which the prosecution relies is in the name of one Qureishi Mohamed Husein Mohamed Siddiq. He further submits that none of the independent witnesses has been examined so as to establish that the room was in exclusive possession of the accused no.2. He further submits that from the material collected by the prosecution, it will be seen that there were documents pertaining to some other person also in the room which was searched. It is, therefore, submitted that the room cannot be said to be in the exclusive possession of the accused no.2 so as to convict him for the offence. The learned counsel relies on the judgment of the apex Court in Mohd. Aslam Khan v. Narcotics Control Bureau & Anr. (1996 SCC (Cri.) 1062). The learned counsel for the appellants submitted that even the panch witness P.W.3 was a stock witness. He submitted that he has admitted that he had acted as a panch in 42 to 50 cases. He further submitted that it has come in evidence that said panch was known to P.W.1 Ravindra M. Ranshevar and, therefore, his evidence cannot be said to be trustworthy. The learned counsel further submitted that if the evidence of panch witness is found to be unreliable, the evidence of the police witnesses also comes under a shadow of doubt. In this respect, he relied on the judgement of this Court in the case of Amarjit Singh v. State (1988 (1) Bom.C.R. 108) and in the case of Ron Chayak v. State of Goa (2007 All MR (Cri.) 2786).