MOHAMMAD PHIROZ HANIF ANSARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BOTH the appeals are directed against the judgement and order passed by the Special Judge appointed under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) dated 30th September, 1993 in NDPS Special Case No. 370 of 1991. The appellant Muhamed in Appeal No. 53 of 1994 (being original accused No. 3), appellant Rashid in Criminal Appeal No. 538 of 1994 (being original accused No. 1) and one Sajan Magan Netkar (original accused No. 2) have been convicted of the offences punishable under section 8 (c) read with section 21 of the N. D. P. S. Act and each of them is sentenced to suffer rigorous imprisonment for a period of 10 years with a fine of Rs. 1,00,000/-, in default, to suffer further rigorous imprisonment for six months. Further, the said accused are convicted under section 8 (c), section 21 read with section 29 of the N. D. P. S. Act and each of them is sentenced to rigorous imprisonment for a period of 10 years with a fine of Rs. 1,00,000/-, in default, to suffer further rigorous imprisonment for six months. The above sentences are ordered to run concurrently. One Jallaluddin Mohmed Saleya, (original accused No. 4) was discharged. Being aggrieved by the said judgment and order, Muhamed and Rashid have filed two separate appeals. As both the appeals are directed against the same judgment, they can be conveniently disposed of by this common order.

(2.) IT is the prosecution case that on 11th March, 1991 at about 10. 30 a. m. information was received that four persons were likely to come near Naaz Hotel, L. B. S. Road, Kurla (West) at about 2. 30 p. m. for the purposes of making a narcotic transaction. The information contained the name of the four accused along with their physical descriptions. This information was recorded by P. S. I. Nigade who is P. W. No. 1. Thus a raid was arranged and for that purpose two panchas were called in the office of the Narcotic Cell. The rading party offered their personal search to the panchas. They also took personal search of the panchas. A pre-trap panchanama was prepared and the Police Officers collected sealing and weighing materials, drug identification kit, and P. W. 1 along with P. I. Pawar and others left in the Police Vehicle and reached near the entrance of the gate of Mukund Wire and Steel Company situated opposite Naaz Hotel and waited for the accused to come. At about 3 p. m. accused Nos. 2 to 4 were seen standing in front of Naaz Hotel and they were talking with each other. After some time Rashid came on the spot with a polythene bag in his hand and the same was shown to the other accused who checked it and handed it back to Rashid. The Police Party, at that point of time surrounded all the four persons and detained them on the spot. It is the further case of the prosecution that P. I. Pawar disclosed his identity to the accused and told them that he wanted to take their personal search. He also told them that they had a right to have their search taken in the presence of a Gazetted Officer and that the accused declined that offer. It is also the further case of the prosecution that P. I. Pawar also told them that he himself was a Gazetted Officer. Thereafter in the presence of the panchas personal search of all the four accused was taken and contraband was found on the person of Muhamed and Rashid who are the two appellants in their respective appeals before us. All the four persons were arrested. However, before framing of the charge, Jallaluddin was discharged and charges were framed only against Rashid, Sajan and Muhamed. The learned trial Judge found all the three accused guilty as charged and sentenced them as mentioned earlier. The present two separate appeals have been directed by Muhamed and Rashid against the said Judgment and order. At the trial, evidence of Tanaji Keshav Nigade, P. S. I. attached to the Narcotic Cell, A. P. I. Naikwadi, pre and post trap panchanama witnesses and evidence of S. R. Pawar being P. W. 4 and being P. I. attached to Nehru Nagar Police Station was recorded. No evidence was led on behalf of the defence which had taken a plea of total denial.

(3.) MR. Mundargi, the learned Counsel appearing for Muhamed, the appellant in Criminal Appeal No. 53 of 1994 and Miss Syed, the learned Counsel appearing for Rashid, the appellant in Criminal Appeal No. 538 of 1994 made only one submission before us and that was to the effect that the mandatory provisions of section 50 of the N. D. P. S. Act had not been fully complied with, inasmuch as that the accused were not given an option of being searched in the presence of a Magistrate. Thus the entire trial was vitiated.