VINOD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two appeals shall stand disposed of by this common judgment since these appeals arise out of the judgment in Sessions Case No. 873 of 1991, State of Maharashtra v. Jaggu and Vinod, decided by the Additional Sessions Judge, Nagpur on 24-9-1992 whereby both the accused-appellants have been held guilty for the offences punishable under section 21 read with section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the NDPS Act) and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh each and in default of payment of fine, both the accused-appellants have been directed to suffer further rigorous imprisonment for 18 months each.

(2.) THE prosecution case as unfolded in complaint (Exh. 39) dated 2-10-1991 and the First Information Report of the even date (exhibit nil) is that Bapu Bhosle, Police Head Constable (P. W. 7) attached to Crime Branch and working in Narcotic Cell, on 2-10-1991 at about 11. 30 a. m. along with the Assistant Sub-Inspector Shri Sakharkar and other Police Constables along with the requisite articles required for sealing the articles like papers, pen, lac, rubber stamp, chemical analysers form etc. started for patrolling from their office and when they were moving within the jurisdiction of the Tahsil Police Station, an information was received at 2. 00 p. m. near Meyo Hospital Square from the special informer that Jaggu @ Jagdish having fair complexion, wearing blue full pant, was standing in Telipura, Bajeriya and said Jaggu was in possession of packets of Gard (brown sugar) and said Jaggu was selling the same to his customers. On receipt of the said information, the same was conveyed on phone to Shri Paraskar, Assistant Commissioner of Police who gave orders on phone itself to carry out the raid immediately. Similarly, at the same time the information which was received, was reduced into writing and the same was handed over to Police Constable, B/no. 2128 for giving it to Shri Paraskar. Two persons viz. Mangal s/o. Raghobaji Aatke, resident of Temple Bazar, Sitabuldi and Digambar s/o. Shamji Meshram, resident of Gopal Nagar who were passing by the road, were called and they were explained in details the aforesaid information and the purpose for calling them to act as panchas. Then they proceeded on foot and reached near Shukla Lodge, Telipura, Bajeriya and it was found that the above described person was standing near electric pole near the lane which is by the side of the Lodge and it was also found that one more person who was wearing full-sleeved white shirt and a light blue coloured full pant on his person, was standing near him and talling with him. On signal being given, two persons were gheraoed at 2. 40 p. m. and then introduction of all the police personnel were given to the said person Jaggu and P. W. 7 Bapu Bhosle showed his identity card and also gave the introduction of panchas. Jaggu was explained and informed that his personal search was to be taken in view of the information received that he was in possession of the packets of Gard and his full name and address was asked and similarly the other person viz. Vinod was also told and informed that his search is to be taken and he was also asked to disclose his name and address completely. Thereafter Jaggu was asked to take personal search of the entire police staff and the panchas which he took and Jaggu ascertained that none of the Police staff did possess any type of Narcotic drug with them. Jaggu @ Jagdish was then asked in Hindi as to whether he wanted to get his personal search conducted in the presence of Executive Magistrate or Gazetted Officer on which he answered that it was not necessary and his personal search can be taken by them. On the personal search of Jaggu which was carried out minutely, 17 packets were found from the right pocket of the full pant. Each packet was opened and examined and it was found that each of them contained dusky white coloured powder of Narcotic drug named Gard (brown sugar) and each packet was weighing 40 mg and total weight of all the packets was 680 mg. Each packet was valued at Rs. 40/ -. The aforesaid Gard packets were seized and collected on a plain paper and about 50 mg. of Gard powder was taken out as a sample from it. Both these packets were wrapped separately. These packets were signed by Jaggu as well as panchas and also by Bapu Bhosle (P. W. 7 ). They were sealed properly as detailed out in panchanama (Exh. 38 ). The 17 pieces of papers in which the Gard powder was found, were given serial numbers 1 to 17. Cash amount of Rs. 100/- was also found from the person of Jaggu and that too was seized. Another person whose name was disclosed by him to be Vinod and was accompanying Jaggu @ Jagdish, in view of his suspicious activities, also was told that his personal search was to be taken. He was told that he may take personal search of the police and the panchas which he did ascertain and then Vinod was asked whether he wanted to give his personal search in the presence of the Executive Magistrate or Gazetted Officer to which he replied that it is not necessary and his personal search can be taken. On personal search of Vinod, three packets of Gard were recovered from the front pocket of his white shirt and it was found that it contained Gard (brown sugar) powder. Each packet was found to contain 40 mg. of Gard and thus, total weight of three packets found from the person of Vinod was 120 mg. and each packet was valued at Rs. 40/ -. The Gard found from the person of Vinod in three packets was collected on plain paper wrapped and a square shaped packet was prepared. The trouser of Jaggu and shirt of Vinod in which the packets of Gard were found, were removed and were also taken into custody and sealed. The search of accused persons, seizure and preparation of panchanama etc. were completed at 5. 30 p. m. and both the accused were arrested.

(3.) AS aforesaid, on the basis of the complaint (Exh. 39) lodged by Bapu Bhosle, Police Head Constable on 2-10-1991, First Information Report was lodged at Police Station, Tahsil, Sub-division Kotwali, District Nagpur bearing Crime No. 448 of 1991 on 2-10-1991 at 7. 10 p. m. Accordingly, a case under section 21 read with section 29 of the NDPS Act was registered against the accused persons viz. Jaggu @ Jagdish and Vinod. The First Information Report (exhibit nil) dated 2-10-1991 was registered by Shri Baliram Dakhore, Police Sub-Inspector (P. W. 6), Police Station Tahsil, Nagpur. Shri Baliram Dakhore (P. W. 6) received seven sealed packets and the original panchanama. He also received Rs. 100/- and the chemical analysers form. P. S. I. Dakhore put one paper on the seven packets, put his signature thereon and Police Head Constable Bapu Bhosle also signed it. The said packets were then handed over to Shri Ramdas Bhangde, Police Head Constable, Tahsil Police Station who was working as Malkhana Incharge. On 3-10-1991, two sealed packets were sent to the office of the Chemical Analyser with Police Constable Ramdas Shelke (P. W. 7) with the duty car (Exh. 25 ). Police Constable Ramdas Shelke deposited the sample packets in the office of the Chemical Analyser and produced the receipt (Exh. 26 ). The said samples were received by the Receiving Clerk of the Regional Forensic Science Laboratory, Nagpur on 3-10-1991 in a sealed condition for analysis along with forwarding letter dated 2-10-1991 (Exh. 15 ). The seals of two parcels from the specimen seal impression on Exh. 15 were tallied and the Assistant Chemical Analyser Shri Vivek R. Dhole (P. W. 1) took notes on paper (Exh. 16) and carried out analysis on 8-10-1991 and found that heroin was present in the samples and the samples were containing 40-60% of heroin. Shri Vivek Dhole prepared original analysis sheet (Exh. 18) and on the basis of that analysis sheet (Exh. 18), gave his C. A. Report (Exh. 19) mentioning that heroin (diacetyl morphine) is detected in Exhibits 1 and 2 along with other opium alkaolids and they fall under section 2 (xvi) of the NDPS Act, 1985.