GUFFRAN MOHEMMAD HASAN KASAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant before us, a resident of Nagchhao Zopadpatti at Malegaon, is alleged to have been involved in dealing with Gard powder at about 17. 35 hours on 31-5-1991. P. S. I. Shaikh Nisar (P. W. 4) received a certain information with regard to his activities pursuant to which he and two panchas Mukhtar Nijamuddin (P. W. 1) and Rafiq Ahmed Siraj Ahmad (P. W. 2), after completing the requisite formalities, proceeded along with the raiding party to the spot in question. The accused was seen sitting under a tree and the Police apprehended him. As many as nine pudis are alleged to have been recovered from him, and the panchanama that was drawn up indicates that the total quantity of the Gard powder contained in these pudis worked out to approximately 1000 milligrams, which is apart from the weight of the paper-wrappings. We note with some degree of appreciation that the Police Officer concerned has followed a very correct procedure while ascertaining the weight of the contraband in this case in so far as even though the quantity of the powder in each pudi was extremely small, he has taken the trouble to collect the aggregate amount of the powder and weighed it separetely so that the Court would be aware of the exact amount of the contraband. We have noted in a large number of cases, particularly the ones where contraband is in relatively small quantity, that the Investigating Officers have committed the error of weighing the contraband along with the container. This has created some problem for the purposes of the Court ascertaining as to how much the exact quantity was and, where it is extremely small, it has often-times been contended on behalf of the defence that if one were to notionally exclude the weight of the paper-wrappers, container, etc. , that the contraband would come within the prescribed amount provided for by section 27 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act" ). This Court has had occasion to also observe that where the offence is one of trafficking in drugs or drug-paddling that, as of necessity, the drugs are divided into very small quantities for purposes of retail and thereby, because of the situation that we have referred to above, leniency is pleaded on the ground that the case is covered by section 27 of the N. D. P. S. Act as far as the quantity is concerned. It was never the intention of the law to allow persons who are retailing or dealing in these dangerous drugs to get away on the ground that the quantities are comparatively small, with a light sentence or no sentence at all. Under these circumstances, we note that this is one of the rare instances where a very correct procedure has been followed and it would be useful for the respective cells of the enforcing agency to specifically bring our observations to the notice of all those concerned with the enforcement of the N. D. P. S. Act.

(2.) THE prosecution alleges that apart from the quantity of 1000 milligrams of Gard seized from the accused that an amount of Rs. 52/- in cash was also recovered from his person. After the formalities were completed at the spot, such as the sealing of the packets containing the Gard powder and the sealing of a separate packet containing the wrappers as also the panchanama, the Police Party thereafter returned to the Police Station and completed the remaining formalities. Dagu Barahate (P. W. 3) was sent with the two sealed packets in question to the Chemical Analyser on 3-6-1991. The Chemical Analyser has, vide his certificate dated 16-9-1991, indicated that the two sealed packets were received by him, that the seals were intact and that, on analysis of the contents of both the packets, traces of heroin were detected along with other opium alkaloids and that Exhibits 1 and 2 fall under section 2 (xvi) (a) of the N. D. P. S. Act. The Chemical Analysers Report has not been seriously assailed either at the trial or before us and the learned trial Judge, on an appraisal of the evidence, held that the charge under section 21 of the N. D. P. S. Act was held proved and awarded a sentence of rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default to suffer rigorous imprisonment for two years to the appellant-accused. The present appeal assails the correctness of the conviction and the sentence.

(3.) SHRI Gavenkar, learned Counsel appearing on behalf of the appellant, has taken us through the evidence on record. His principal ground of attack is that the panchanama in the present case is vulnerable. Towards this end, he has taken us through the evidence of P. S. I. Shaikh Nisar (P. W. 4 ). He pointed out to us that the panchanama in question was scribed by Police Constable Thakre and that the scribe has not been examined. On the basis of the English transcript, Shri Gavnekar pointed out that it appeared that the panchanama had been prepared under the instructions of P. S. I. Rathod and it was Shri Gavnekars contention that in the absence of P. S. I. Rathod being examined as a witness and the Panchas being unreliable, that the Court should outright reject the panchanama and if that goes that there is no nexus established between the seizure and the accused.