MOHAMED ENSHEEL Vs. K P GUNDECHA

JUDGEMENT

(1.) HEARD learned Counsel for the parties in detail in context with the evidence on record.

(2.) THE appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by Special Judge in N. D. P. S. Case No. 5 of 1996 wherein he convicted the appellant for committing the offence punishable under the provisions of section 18 of the Narcotic Drugs and Psycho-tropic Substances Act, 1985 (hereinafter referred to as the Act for convenience ). The appellant has been sentenced to undergo R. I. for ten years and to pay fine of Rs. 1 lac, in default to undergo R. I. for two years in respect of the offence indicated by provisions of section 18 of the N. D. P. S. Act.

(3.) THE prosecution case in brief is that on 27-10-1995 at about 5. 30 p. m. Superintendent, Customs (Preventive), Head Quarters, Pune, Shri Gundecha, received the information that one person named Parvej Dhulha Khan (who happens to be accused No. 1 in the above said special case) was to come with opium and 400 grms of heroin by riding Kinetic Honda bearing No. MVO-7807 and was going to deliver the same to another person near "tin Toph area" opposite Army Supply Depot at Sliver Jubilee Corner Camp, Pune at about 8. 30 p. m. It was informed that he happened to be the regular supplier of opium to Iranian National Shri Mohammd Enshaei, the present appellant, who was at that time residing at Koregaon Park, Pune. On this information customs Officers, namely, Shri Gundecha, Superintendent, Inspectors C. P. Venod, T. S. Krishna Murthy, Alexander Lee and V. B. Deshpande proceeded to Silver Jubilee Motors Corner Camp, Pune and ambushed near that area alongwith two panch witnesses. At 8. 30 p. m. they saw that one Silver Colour kinetic Honda Scooter bearing No. MVO 7807 being driven by one person was coming to said road. It stopped near Tin Toph area, opposite Army Supply depot. After observing his behaviour they went near him and inquired about his name which he told as Parvez Dhulha Khan. They asked him as to what he was carrying in the said basket connected with the scooter. He told that he was carrying opium, 1 kg. Nirma washing powder and 2 kgs. of cement which he had brought for a customer. They seized those articles under the panchanama. Though said Parvej Dhulha Khan attempted to run away from the spot by seeing a car bearing No. MVL 4479, he was caught and those articles were seized under a panchanama and Parvej Dhulha Khan was taken to the Customs Warehouse (Central Godown) along with panch witnesses, the said godown was situated at Saify Lane, Camp, Pune. The samples were collected for chemical examination. He disclosed name of the appellant during the interrogation. Therefore, by taking the search warrant the said officers went to Flat No. A/8 Liberty society, Phase II, Koregaon Park at 11. 30 p. m. They knocked the door of the said flat which was opened by the appellant whom the search warrant was shown and the search of the said flat was taken. The said officers found that a cavity was created by arranging two books vertically and touching each other. In the said cavity a packet was kept which contained opium weighing 40. 6 gms. which was seized under a panchanama in presence of panch witnesses. The appellant alongwith the said Parvej Dhulha Khan and Hossein Pishevarz were prosecuted before the special Court. Prosecution examined necessary witnesses. The appellant examined one witness in his defence. The learned trial Judge acquitted Parvej dhulha Khan and convicted the appellant and one Hossein Pishevarz. After the trial and before the appeal was filed the said person died.