STATE OF MAHARASHTRA Vs. HARSHAD VAHERBHAI PATEL

JUDGEMENT

(1.) This appeal filed by the State of Maharashtra through the Assistant Collector of Central Excise and Customs is directed against the order of acquittal passed in Sessions Case No. 1303 of 1988 by the learned Additional Sessions Judge for Greater Mumbai on 2/2/1989. The present Respondents came to be tried in the said case for the offences punishable under Section 120-B of IPC read with Sections 20, 23 and 29 of the N. D. P. S. Act, 1985 and Sections 135 (i)(a) and 135 (i)(b) read with Section 135 (1) (ii) of the Customs Act, 1962.

(2.) As per the prosecution case, on 31/7/1987 Shri Prabhakar Karanjekar (PW 6), who was working as the Superintendent of Central Excise with his office at Piramal Chambers, Lalbaug, had received an information at about 2.45 p.m. from a known and reliable informant that a huge quantity of Hashish was likely to be transported in a tempo bearing No. MMS-432 from C.S.T. Road, Kurla to Mumbai for export purposes. The informant also had conveyed that the said tempo would be found at a place near Maha Auto Agency on C.S.T. Road at Kurla and that one Ambassador Car would follow and take away the said tempo. On receipt of the said information, Shri Karanjekar followed the due process of law and set out to lay a trap along with other officers like Shri Uttamrao Jadhav - PW 1 and others after obtaining the approval from the Assistant Collector. These officers left from office at about 3.30 p.m. on 31/7/1987 and proceeded towards the destination and when they reached the junction of C.S.T. Road and Agra Road at Kurla at about 3.55 p.m. they stopped their cars near the junction and kept a watch on the movements of the vehicles. After some time, they spotted the tempo bearing No. MMS 432 parked near Maha Auto Agency and it was being followed by an Ambassador Car bearing Registration No. MMH - 1640. They encircled both the vehicles and brought it to the Petrol Pump where the Assistant Collector was waiting and then these two vehicles along with the accused were taken to the office at Lalbaug. They were asked to open the tempo and PW 1 noticed that it had 26 cartons and the substance inside each carton had a typical smell and, therefore, they suspected that it was a contraband. From two cartons, samples were drawn and they were found to be slabs of Hashish. All these cartons were unloaded and taken to the 8th Floor Office of Central Excise. Two panchas were called for drawing seizure panchanama. All the 26 cartons were opened and every slab were weighed and samples were drawn. The whole process was completed by about 11 p.m. and during the course of this search and seizure, it was noticed that the registration papers of the tempo were found in the car. The car was driven by accused No. 1 - Shri Harshad Patel, whereas the tempo was driven by accused No. 3 - Parshuram Kamble. During the course of investigation, accused No. 2 was also picked up on the ground that he had conspired the offence to purchase and export the contraband along with accused Nos. 1 and 3. The statements of all the three accused under Section 108 of the Customs Act were recorded and during the personal search of accused No. 1, cash amount of Rs. 22,000/- was recovered from him and at the same time, during the personal search of accused No. 3, some documents and driving license were recovered from him. The panchanama at Exh.22 was drawn at about11 p.m.in the presence of two independent pachas, PW 2 - Shrikant Patil and Shri Vishnu Satam. On completion of the investigation, the charge-sheet was filed.

(3.) During the trial, the prosecution examined in all seven witnesses and PW 7 - Shri Sundersingh Dabola, who was the driver and near relation of accused No. 3 turned hostile. Shri Satam was not examined as a witness and in support of the panchanamat at Exh. 22, only PW 2 -Shrikant Patil was examined. He was the only independent witness and the remaining five witnesses were the officers of Central Excise. PW 1 -Uttamrao Jadhav was Inspector, PW 3 - Shri Ramchandra R. Sapre, PW 4 - Karamoottil Philip, PW 5 - Shri Kashinath Joshi and PW 6 - Shri Prabhakar Karanjekar were the Superintendents from Central Excise. The accused claimed that they were innocent and they were roped in the case without any basis or evidence. The prosecution case was in two parts, namely, (a) the physical possession of Hashish by accused Nos. 1 and 3 on 31/7/1987 and its seizure by the team of the officers led by PW 6 and PW 1 and (b) the conspiracy at the instance of accused No. 2 and with the involvement of accused Nos. 1 and 3.