MALIKA KHATOON AND ORS. Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present appellants (original accused No. 1 and 2) who are husband and wife have challenged their conviction under Sec. 20(b) (i) read with Section 27 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and respective punishment for these offences.

(2.) THE prosecution case was that on 28-12-1990, PW 4 Police Sub-Ins­pector Razauddin Deshmukh of Ramdaspeth Police Station, Akola received information that appellant No. 2 Khalilkha, resident of Purpidit Colony i. e. Indira Nagar deals in 'Ganja'. He, therefore, called tw3 panch witnesses and along with them and other staff went to raid the house of the accused. On going to the house of the accused, it was found that the front side door of the house was closed and the back side door was open. When a call was given to accused Khalilkha, he ran away from the back side door. After that, his wife Malika Khatoon came out of the house. The raiding party informed her about the object of their search and accordingly proceeded to search the house. During the search near the eastern side wall in a room, a suit-case containing 1 1/2 kgs. Ganja, weigh machine, 200 grams weight and cash Rs. 434/- were found. All these articles were seized under Panchanama. A sample of the Ganja was taken. It was sealed separately with the signature of the panchas thereon, Malika Khatoon was arrested and ultimately on receiving the Chemical Analy­ser's report, the accused came to be prosecuted for offences punishable under section 20(b) (i) read with section 27 of the Act.

(3.) SHRI Haq, the learned Advocate appearing on behalf of the appellants, urged that in the first place the prosecution had failed to prove that the house from where Ganja was seized belonged to the accused, inasmuch as the evi­dence shows that the Ganja was seized from an adjacent quarter which was in nobody's occupation. He further urged that the story of PW 4 Razauddin that he saw accused Khalilkha while running away does not deserve credibility, because there is variance in the first information lodged by him and the subs­tantive evidence. He contended that although it is said that on the sample, signature of accused Malika Khatoon was taken, report of the Chemical Analy­ser (Exhibit 33) does not show that the sample had the signature of the accus­ed. Shri Haq also contended that there was non- compliance with the provi­sions of Sections 42(2) and 57 of the Act and since these provisions were manda­tory, the accused were entitled to acquittal for non-compliance thereof. He also pointed out that on the admission of the panchas themselves, it is clear that they were professional panchas and it creates a doubt about the testimony of the complainant particularly when the Station Diary (Exhibit 40) does not contain a particular reference about the information against the present accused.