SHAIKH MUNNA SHAIKH KADIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is filed against the judgment and order dated November 30, 1990, passed by the Additional Sessions Judge, Bombay, in Special Case No. 904/1990, convicting the accused under Section 8(c) read with Section 21 of the Narcotics Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as "the N. D. P. S. Act") and further sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000 and in default of payment of the same to suffer rigorous imprisonment for a further period of one year.

(2.) IT is the case of the prosecution that the accused was found standing near the Regency Hotel in suspicious circumstances. Ravindra Desai Police Constable attached to the Colaba Police Station (P. W. No. 2) saw the accused surrounded by a few persons and he was giving something to those persons from his pockets. Along with this witness Ravindra Desai was a Head Constable and when this witness brought this fact to the notice of the Head Constable, he told him to wait and watch. After their doubt was confirmed Ravindra Desai (P. W. No. 2) and four other police constables went near the accused who tried to run away, however, was caught by this witness Ravindra Desai. Since Ravindra Desai and the other constables present there suspected the accused to be in possession of narcotic drugs a telephone message was given to the Colaba Police Station to P. S. I. Khushal Singh Pardesi (P. W. 3). After receiving the message that the accused is in possession of narcotic drugs P. S. I. Pardesi (P. W. 3) came to the spot and thereafter with the help of the police constables two panchas were called and it is the case of the prosecution that in the presence of the panchas the accused was searched and forty vials containing some ash coloured substance were recovered from his right hand side pocket of the pant. Thereafter the said material found on the person of the accused was seized and sealed before the panchas. Panchanama was drawn by P. S. I. Pardesi (P. W. 3) and the accused was arrested and was brought to the police station. All this took place on July 10, 1990, in between 11.20 a.m. to 11.30 a.m. After going to the police station at about 11.45 a.m. P. S. 1. Pardesi filed the First Information Report which is at Ex. 11. Thereafter the case was filed against the accused person, he was charge-sheeted and was tried before the Additional Sessions Judge, Bombay in Special Case No. 904/1990.

(3.) MR . Jha, the learned Counsel appearing on behalf of the appellant-accused, contended that the prosecution case ought to have been dismissed by the trial Court. Further, according to the learned Counsel Mr. Jha, the prosecution has miserably faibd to prove that the accused was in possession of the brown powder as alleged by the prosecution. The main thrust of the arguments of Mr. Jha is on the deposition of the panch witness. According to him, taking into consideration the background of the panch witness, taking into consideration the different timings given by the panch witness and taking into consideration the discrepancy in his deposition in comparison with the deposi­tion of other witnesses, it is difficult to rely on the testimony of this witness and, therefore, the prosecution case should fail on this count alone.