KARIMKHA AJIJKHA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for possession of one gram of brown sugar under section 20 (b) (ii) of the N. D. P. S. Act, 1985 (hereinafter referred as the said Act ). The appellant pleaded not guilty. The prosecution had examined seven witnesses in support of the charge. The trial Court vide judgment dated 25th October, 1999 held the appellant guilty for the said charge and sentenced him to undergo R. I. for ten years and fine of Rs. 1,00,000/-, in default, R. I. for two years. The appellant was in detention in connection with crime from 23-2-1999 till the date of judgment which was set off in terms of section 428 of Cri. P. C. The appellant continues to be in jail after his conviction till to date.

(2.) THE prosecution case, in brief, is that on 27-11-1998, the appellant had returned back from the Court hearing and at night time, one Sanjay Ruikar, Sepoy informed the Jail Superintendent Swati Sathe (P. W. 1) that the activities of the appellant who was in Barrack No. 6, were suspicious. The Jail Superintendent along with staff came there and upon taking search of the appellant by Jailor Dabir, one Sitara Gutkha Pudi (Pouch) was found in the mouth of the appellant. The said pouch was taken out and it was found that the same contained about one gram of brown sugar. One Pannie paper was also found in the left pocket of paijama of the appellant. The matter was reported to the police. P. W. 7 P. S. I. , Uttam Choudhary came to the jail premises and attached the said pouch containing brown sugar. The same was forwarded to the chemical analyser, who found that the samples sent contained heroine (diacetylmorphine) and the same falls under section 2 (xvi) (e) of N. D. P. S. Act.

(3.) LEARNED Advocate for the appellant took me through the evidence on record and pointed out that Sepoy Sanjay Ruikar who had first reported about suspicious movement of the appellant has not been examined. He also pointed that the convict overseer Wankhede and Jirapure, Sepoy who had also informed about the suspicious movement of the appellant in Barrack No. 6 have not been examined. He then urged that no panchanama of recovery was prepared by the Jail Superintendent and no jail inmate has been examined to prove the said recovery from the appellant. It was also pointed out that there is nothing on record to show that the contraband recovered was weighed and even pancha who was later called for the purpose of attachment speaks of only weighing of the contraband and has not stated anywhere as to what was its weight. It is also pointed out that even the chemical analyser to whom the entire sample was sent for examination, has nowhere mentioned weight of the contraband which according to the Investigating Officer was half gram. In the light of the evidence on record, learned Advocate for the appellant has pointed out that the recovery is not duly proved nor the exact quantity of the contraband which is stated to have been recovered. He therefore, submits that for failure on the prosecution to prove the charges, the appellant is entitled for acquittal. Alternatively it was urged before me that the fact that according to the prosecution the contraband was found in the mouth of the appellant would by itself go to show that the same was for his personal consumption though no such defence has been taken. Relying upon Notification No. S. O. 503 (I. C.) dated 16th July, 1996, it is urged that the quantity found is a small quantity and as such benefit of section 27 of the N. D. P. S. Act be extended to the appellant.