LAWS(BOM)-2007-1-132

STATE OF MAHARASHTRA Vs. SHAIKH AHMED SHAIKH USMAN

Decided On January 31, 2007
STATE OF MAHARASHTRA Appellant
V/S
SHAIKH AHMED SHAIKH USMAN Respondents

JUDGEMENT

(1.) State has filed this Appeal challenging the acquittal of the accused under the provisions of Narcotic Drugs and Psychotropic substances Act, 1985 (NDPS Act). One of the accused i. e. accused No. 1 died. There is already an order of abatement dated 15-12-2006 against accused No. 1.

(2.) Both the accused were charged for the offences punishable under section 29 and 20 of NDPS Act and accused No. 2 is charged separately under section 20 of the NDPS Act. According to the prosecution Mohammed Hanif, Inspector in central Excise and Customs Department was authorised by Superintendent kulkarni with a search warrant bearing No. 40 of 1987 for the house of accused no. 1. Thereafter Inspector Mohammed Hanif accompanied by other office bearers went to that house along with two panchas. In the byelane near the house of accused No. 1, they found accused No. 2 with certain bags of ganjas. They were seized. Then house of accused No. 1 was searched and 60 small packets containing ganja are recovered. Samples were taken, sent to C. A. and after report, charge-sheet was filed. Trial court acquitted the accused on the ground of non-compliance to the mandatory provisions of the NDPS Act and non-compliance of sections 42 and 50 because the prior information received by the office was not reduced into writing and when accused No. 2 was searched he was not informed that he had a right of being searched in the presence of a magistrate. Nothing is done in this regard. No panchnama is done. No evidence is also there regarding legal compliance and therefore apart from other reasons the trial court was inclined to acquit the accused.

(3.) It is pertinent to note that when search warrant was obtained, panchas are collected, then admittedly there was prior information that accused No. 1 was connected with charas or ganja in his house. But still P. W. 1 Mohamed Hanif inspector in Central Excise and Customs Department says that he had not received any information against the accused. This is obviously wrong and not truth.