BENARD CHAPANGA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant is assailing correctness, propriety and legality of the order of conviction and sentence passed against him by the Additional Sessions Judge Special Judge in Special Case No. 15 of 1995, for offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N. D. P. S. Act) and sentencing him to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 2 Lacs, in default to suffer further rigorous imprisonment for one year. By the said judgment the learned trial Judge had also convicted the appellant for the offence punishable under Section 23 of N. D. P. S. Act and sentenced him to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 2 lacs in default to suffer further rigorous imprisonment for one year. Likewise, the learned trial Judge convicted the appellant for committing the offences punishable under Sections 22, 23 and 28 r/w Section 29 of the N. D. P. S. Act and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 2 lacs, in default to undergo further rigorous imprisonment for one year. In the same way the learned trial Judge had convicted the appellant for offence punishable under Section 30 of N. D. P. S. Act and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac, in default to undergo further rigorous imprisonment for six months. The Substantive sentences have been directed to run concurrently.

(2.) THE prosecution case in brief is that P. W. Kale and his colleague got information that some suspected persons are likely to travel by Ethiopia Airlines Flight No. ET-611/25. 10. 94/std: 0445. The said information was reduced into writing and it was sent to Shri Om Prakash through Singh. Under the direction of Om Prakash raiding party abushed in the building of Air Port and when the appellant and his associate came near the Customs Counter, they were apprehended and their passports, air tickets and boarding passes were seized by the members of raiding party. The bags checked in were identified by the appellants and his associate respectively. The key was demanded but the present appellant stated that the key was lost. Hence the said bag was torn open. It was found to contain 18 polythene bags which were containing mandrax tablets (Methaquilon Powder Tablets ). Thereafter the appellant and his associate were told that they were entitled tog et searched before a Gazetted Officer or a magistrate but they preferred to be searched by the members of raiding party and they were searched so in presence of panch witnesses who were present there when the appellant and his associate were apprehended. Except some Dollars nothing was found with the appellant. The panchanama was drawn and the appellant was arrested. The seized mandrax, after being tested, was deposited in the office of N. C. B. The investigation continued and the appellant was interrogated for collecting the information. Thereafter the appellant was put to trial and after appreciating the evidence on record in view of the arguments submitted, the learned trial Judge passed the order of conviction and sentence as mentioned above, which has been hereby assailed.

(3.) SHRI Saldanha Counsel appearing for the appellant, very vehemently defended the appellant and submitted that in the present case the important provisions of law have not been complied with and therefore, the evidence which has been collected by the Investigating Agency cannot be accepted for basing conviction. He submitted that the panch witnesses had acted as panch witnesses in previous cases and therefore, their evidence cannot be believed. Shri Thakur, Counsel appearing for respondent No. 1, submitted that it would not be proper to conclude that only because the panch witnesses gave evidence in some cases prior to the case in question, their evidence should be discarded. He submitted that on the contrary, in the matter of Pon Adithan v. Deputy Director Narcotic Conrol Bureau, Madras, reported 1999 Cri. L. J. 3663, the Supreme Court has held that absence of independent witnesses and documentary evidence to establish the fact that the requirement of Section 50 (1) was complied with does not damage the credibility of the prosecution evidence.