MOHAMMAD SALIM BASHIR SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) MS. Savita Suryavanshi, Advocate appointed for defence of the appellant in this appeal and Shri Saste, Additional Public Prosecutor for the prosecution, have been heard in detail.

(2.) THE appellant is hereby assailing the correctness, propriety and legality of the judgment and order of conviction and sentence passed by Specialjudge for Greater Mumbai in N. D. P. S. Special Case No. 265 of 1997 whereby he has been convicted for offences punishable under provisions of section 21 read with section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N. D. P. S. Act for convenience), and sentenced to undergo R. I. for 10 years and to pay fine of Rs. 1 lac, in default of payment of fine, to suffer R. I. for six months.

(3.) THE prosecution case in brief is that P. I. Hargude of Shivaji Nagar Police station received information on 12-3-1997 at about 3. 15 or so that the appellant is likely to come near municipal school, Nine Feet Road, Rafiq Nagar slum Area, Govandi. He dispatched that information to his superior and through P. S. I. Daddikar called the panch witnesses. The said information was revealed to panch witnesses and the colleagues and thereafter the raiding party went to the spot for effecting the raid on the appellant. The appellant came to the spot at about 6 or 6. 30 p. m. and after verifying his description with the information received, the members of the raiding party caught him. As per the prosecution case, the appellant was informed about his right under provisions of section 50 of the N. D. P. S. Act. He was also told that P. S. I. Hargude was a Gazetted Officer. The appellant, as per prosecution case, did not desire to be searched by a Gazetted Officer or Magistrate but preferred to be searched by the members of the raiding party. Search was taken and in the search from the pocket of his pant a paper packet was found which after opening was found to be containing three gms. of heroin. A sample packet was prepared. The panchanama was drawn and the appellant was arrested. The said sample packet was dispatched to Deonar Police Station which was received by the same Police Station and it was kept in the custody of P. I. Hargude. On 13-3-1997, messenger P. W. 5 Palande was called by P. I. Hargude and the said sample was given to him for carrying to the F. S. L. He gave it on the same day. After the same packet was chemically examined it was found to contain Diacetyl morphine (heroin), a narcotic drug, the charge-sheet was prepared and filed against the accused in the Court which resulted in the trial in which the appellant was convicted and sentenced as stated above.