PRABHAKAR DHONDIRAM WAGHCHAURE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the learned APP for the State.

(2.) Appellant in Criminal Appeal No. 567 of 2003 is the original accused No. 1 and the appellant in Criminal Appeal No. 1068 of 2003 of the original accused No.2. Both the appellants are convicted by the Trial Court in Special Sessions Case No. 336 of 2002 by the Special Judge, Thane for the offence punishable under sections 17, 20 and 22 of the Narcotic Drugs & Psychotropic Substances Act and sentenced to suffer R. I. for 10 years and to pay fine of Rs. 1 lakh and in default to undergo R. I. for one year.

(3.) The learned Counsel appearing on behalf of the appellant has taken me through the judgment and order of the Trial Court as also the entire oral and documentary evidence on record. He submitted that the prosecution had not examined the Chemical Analyser and, as a result of the non-examination of the Chemical Analyser, the report of the Chemical Analyser could not have been relied upon. He submitted that in the absence of any data disclosing the tests which were performed by the Chemical Analyser, mere production of the C. A. 's report was not sufficient to establish that the accused were carrying opium. In support of the said submission, he relied on the judgment of this Court in the case of Nicklaus Peter Heel Vs. State of Goa, 1998 2 MhLJ 884. He also relied upon the judgment of this Court in the case of Mohammad Hanif Mansoori Vs. State of Maharashtra, 2003 AllMR(Cri) 506. He also relied upon an unreported judgment of this Court in Criminal Appeal No. 27 of 1997 (Deenkhan Mohd. Vs. State of Goa) and he finally relied upon the judgment of the Gujarat High Court in the case of Mahmad Hanif Shaikh Ibrahim Vs. State of Gujarat, 1995 1 Crimes 274. He further submitted that the charge which was framed by the Trial Court was defective and though opium was allegedly seized from the accused, the charge under sections 20 and 22 of the N. D. P. S. Act was framed. He submitted that according to the Chemical Analyser's report, the substance which was found fell within the definition of section2 (xv) (a) which was punishable under section18 of the N. D. P. S. Act. He submitted that the Trial Court, however, wrongly framed a charge under section17 of the N. D. P. S. Act. He submitted that as a result of the defective charge being framed, a serious prejudice was caused to the accused and on that count the finding recorded by the Trial Court was liable to be set aside as the trial was vitiated. He relied upon the judgment of this Court in the case of Mohammad Ismail s/o. Karim Patil Ansari Vs. State of Maharashtra, 2003 AllMR(Cri) 273. He, therefore, submitted that the prosecution had not established any nexus between the appellant and the vehicle which was seized. He submitted that there was no evidence on record to indicate that the vehicle was owned by the appellant. He, therefore, submitted that the accused was entitled to be acquitted. In support of the said submission he relied on the judgment of this Court in the case of Hiralal s/o. Gauruddin Gore & Anr. Vs. State of Maharashtra, 2004 AllMR(Cri) 3325. He also relied upon the judgment of this Court in the case of Antony Sauri Pilley Vs. State of Maharashtra, 1993 CrLJ 1502. He further relied upon unreported judgment of this Court in Criminal Appeal No. 359 of 1999 (Mohd Enshael Vs. Customs ).