ARUNKUMAR S RAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ALL the three appeals are directed against the Judgment and Order dated 9th December 1993 passed by the Special Court for Greater Bombay whereby Accused Nos. 1 to 3, who are Appellants in Criminal Appeal No.679 of 1993, Accused No.6 who is the Appellant in Criminal Appeal No.7 of 1994 and Accused No.4, who is the Appellant in Criminal Appeal No.8 of 1994 have been convicted of offences punishable under Section 8 (c) read with Section 21 and 8 (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the said Act' for short) and Accused Nos. 4 and 6 are also convicted under Section 8 (c) read with Section 29 of the said Act. However, they have been acquitted of the offence punishable under Section 8 (C) read with Section 21 of the said Act. Accused Nos. 1 to 3 have been sentenced to Rigorous Imprisonment for 10 years with a fine of Rs. 1,00,000/- and in default to suffer further R. I. for one year. Accused Nos. 1 to 3 are further sentenced for the same period and for the same fine for conviction under Section 8 (c) read with Section 29 of the said Act. Accused Nos. 4 and 6 have been similarly sentenced. Being aggrieved the present three appeals are preferred by the said accused. Original Accused No.5 had been acquitted.

(2.) THE prosecution case in brief is that on 11th November 1991 at about 11 a. m. P. S. I. Salaskar of the Narcotic Cell, Bombay received an information from one of the residents that he had come in contact with the members of a gang from Varanasi who was dealing in heroin. THE information further went on to say that the said gang was looking for prospective buyers and the informant disclosed the names of accused Nos. 1 to 3 P. S. I. Salaskar passed on this information to the Deputy Commissioner of Police, Narcotic Cell and under his direction a decision was taken to lay a trap and, therefore, on the same day, the informant accompanied by P. C. Natu (P. W. 1) and P. C. Vichare (P. W. 5) went to New Mill Road, Kurla and met accused Nos. 1 to 3.P. W. 1 was introduced as Vicky while P. W. 5 was introduced as Raja and the meeting took place. At the said meeting it was agreed that accused Nos. 1 to 3 would supply 1. 5kg. white heroin at the rate of Rs. 2,10,000/- per kg. and further quantity of 1. 5 kg. of brown heroin at the rate of Rs. 1,20,000/ per kg. It was further decided at the said meeting that at about 3.30 p. m. on the next day P. S. 1 and P. W. 5 and the informant would go to the same place in a motor car with cash to take delivery of the heroin. Accordingly a trap was laid and on the following day the raiding party consisting of two panchas, one of them was examined as P. W. 2, and also two Police Inspectors viz. , Ghuge and Singh, three Sub Inspector viz. , Salaskar, Sawant and Bage and other police staff started in three vehicles. P. W. 1 was given a brief case containing the case amount of Rs. 5 lakhs. THE raiding party had taken with them sealing and weighing materials, drug identification kit and a typewriter. THE advance raiding party consisting of P. W. 1 and 5, the two Police Constables, who had negotiated with Accused Nos. 1 to 3 on the previous day, accompained by two panchas left the office of the Narcotic Cell at 2 p. m. and before leaving the office, a pre-trap panchanama was drawn. P. W. 1 and 5 and the informant who were sitting in the Ambassador Car reached near Ravindra Stores, New Mill Road, Kurla at about 3 p. m. which was the place agreed upon on the earlier day for finalisation of the transaction. THEy were followed by a Gypsy Car and a taxi which was occupied by other members of the raiding party. THE Gypsy Car was parked at a distance of about 50 yards from the car in which P. W. 1 and 5 and the informant were travelling. THE members of the raiding party who were in the Gypsy Car and the taxi got down and took their positions at suitable places. P. W. 1 and 5 remained in the Ambassador Car in which they travelled. It is the prosecution case that about3.15 p. m. accused Nos. 1 to 3 accompained by accused Nos. 4 and 6 were seen coming to the spot. Accused Nos. 1 to 3 were carrying with them one polythene bag each. THE said three accused were brought to the spot by the informant. THE three accused viz. , Accused Nos. 1 to 3 got in the Ambassador Car occupied by P. W. 1 and 5 and accused Nos. 4 and 6 stood near the car. An enquiry was made by the said accused Nos. 1 to 3 with P. W. 1 for the money and he showed to him the polythene bags in which they had brought the heroin. THE brief case was opened by P. W. 1 and he showed the cash amount which was lying inside the bag. At that stage P. W. 1 gave a pre-determined signal to the other members of the raiding party who immediately rushed to the car occupied by accused Nos. 1 to 3 and P. W. 1 and 5, surrounded the same and apprehended accused Nos. 1 to 3.Accused No.6 managed to run away. Accused No.4, however, tried to run but was caught on the spot. From all the three accused i. e. from the plastic bags carried by them, a total quantity of 2 kgs of contraband was seized. It is the prosecution case that the samples were taken and on analysing the same, the same was found to be heroin. THE Accused, except accused No.6, were arrested. Accused No.6 was arrested subsequently. All the accused were charged accordingly, found guilty and sentenced as per the Judgment and Order mentioned earlier. Being aggrieved, the present appeals are preferred.

(3.) SEVERAL other contentions were raised on behalf of the appellants. It was contended that Section 42 of the said Act was also not complied with. Further grievance which was made was that the report required to be made under Section 57 was also admittedly not shown to have been made. The last grievance was that there was nothing to show that the item which was seized and the samples which were taken from the contraband remained in safe custody. However, as we have taken the view that Section 50 of the said Act is not complied with and that non-compliance thereof has vitiated the entire trial, we do not think it necessary to deal with other questions which are raised before us. As far as Criminal Appeal No.679 of 1993 is concerned, the same is preferred by the three accused i. e. Accused Nos. 1 to 3 who are allegedly found in possession of the contraband and who were according to the prosecution searched and from whom contraband was found. In view of our decision on the question of Section 50, of the said Act the trial is vitiated. Accused Nos. 4 and 6 were not actually charged for possession but the charge against them was of having conspired with Accused Nos. 1 and 3.In view of the fact that we have come to the conclusion that the possession as against accused Nos. 1 to 3 has not been proved, the question of accused Nos. 4 and 6 being punished under charges framed against them also would not arise.