MUKESH KAUSHIK Vs. R P MURKUNDE

JUDGEMENT

(1.) BOTH these appellants have been convicted and sentenced by the Additional Sessions Judge, Greater Mumbai in Special Case No. 264 of 1999. The appellants have been convicted for committing the offence punishable under provisions of section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 and have been sentenced to undergo R. I. for five years with fine of Rs. 50,000/- each, in default of payment of fine to undergo further simple imprisonment for two months. They have been also convicted for the offence under sections 28 and 30. However, no separate sentence has been passed against them though they have been convicted under those two provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 along with their conviction in view of provisions of section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for convenience ).

(2.) THE appellants are in jail since 30-5-1999. They have undergone more than 50% of the sentence and their lawyers insisted for early hearing of their appeals. In view of the judgment of the Supreme Court in the matter of (Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others)reported in 1994 (6) S. C. C. 731, (generally known as Common Causes judgment), therein the Supreme Court has observed that the accused who are languishing in jail for a period exceeding half of the punishment provided under the Act either be released on bail or their appeals be heard expeditiously. Instead of releasing them on bail, it is proper in the interest of justice to decide their appeals.

(3.) THE prosecution case in brief is that the officers working in N. C. B. , Mumbai got the information from their sources that one associate of Rajendra Singh of Village Lendhora, Taluka Rurki, District Hardwar, (U. P.) and some other persons residing in Maharashtra have entered into a criminal conspiracy and in view of that conspiracy the consignment of ganja had come to Mumbai and one person named Kaushik-accused-appellant in Criminal Appeal No. 839 of 2001 was to come for taking the delivery of the said consignment at Bandra Terminus on 29-5-1999. Accordingly, P. W. Murkunde, P. W. Singh, P. W. Nambudri and their colleagues along with panch witnesses were ambushing at the entrance gate of Bandra Railway Station at about 11. 00 a. m. or so on 29-5-1999. They had the description of said Kaushik as a person of middle height with wheatish complexion. As per the prosecution case when the appellant Kaushik appeared on the scene and was to make entry in the railway station, he was apprehended by the members of the raiding party. They ascertained about his identity and thereafter his person was searched in which an invoice bearing No. 590100 was found. It was for the purpose of taking the delivery of the consignment of ganja dried leaves which were stored in gunny bags and were lying on the railway platform openly. The said invoice was seized by the members of the raiding party, appellant Kaushik was taken to the spot where those gunny bags were lying. Gunny bags were opened. Ganja was taken out. It was tested by test kit and it was revealed to be ganja canopy. Thereafter some interrogations were made to appellant Kaushik and he told that he had arrived in Mumbai on 27-5-1999 and was staying in Shivam Communication Center situated at Bhuleshwar Road which was owned by appellant Kamal Singh. He further told them that he was sent by appellant Kamal Singh to Bandra Railway Terminus for the purpose of taking the delivery of said ganja and, therefore, he had come there. He informed the members of the raiding party that Kamal Singh was also concealing ganja in the said premises. Thereafter the members of the raiding party along with Kaushik went to their Police Office at Ballard Pier area. The superiors were informed about their performance so far and the actions taken by them. There is no information available as to what the members of raiding party did thereafter, say from about 2. 00 p. m. or 2. 30 p. m. till 11. 00 p. m. when the said Shivam Communication Centre was raided by the members of the raiding party along with the same panch witnesses who were with them. The purpose of the raid was informed to appellant Kamal Singh and in presence of the same panch witnesses the said premises were searched. About 391 kgs of ganja was found concealed in the loft of the said premises. 1500 kgs of ganja was found at Bandra Railway Terminus. A panchanama was prepared. Both the appellants were not arrested till 4. 00 p. m. on 30-5-1999. Thereafter necessary investigation followed and charge-sheet was submitted against the appellants which resulted in the trial which they faced in which they were convicted and sentenced as mentioned above. The appellants are assailing the said judgment and order of conviction and sentence passed by the Special Judge Additional Sessions Judge, Greater Mumbai on various grounds.