MOHAMMAD HARUNFAKIR MOHMED ANSARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal arises from the order of conviction and sentence passed by the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act" for short) on 31/3/1999 in NDPS Special Case No.503 of 1997. Out of the two accused, accused no.2 came to be acquitted whereas accused no.1 - the appellant came to be convicted for the offence punishable under Section 20(b)(ii) read with Section 8(c) of the NDPS Act and he has been sentenced to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine of Rs.1,00,000/-, he has been directed to undergo S.I. for four months.

(2.) As per the prosecution story Shri Patil, Sr.P.I. attached to Mahim Police Station received an information on 9/8/1997 at about 10.30 hrs. that two persons, one by name Mohommad Haroon Ansari, aged about 25 years, 5 5" tall, fair complexion, wearing white shirt and brown colour trouser and another person by name Sohel Ahmed Farooki, aged between 30 to 35 years, wearing Mehandi colour pathani dress, 5 5" tall having fair complexion were likely to come near Johnson and Johnson Company, Senapati Bapat Marg, Mumbai 400 016 between 1.00 to 1.30 p.m. on that day and accordingly he passed on the said information to PW 4 PI Sanghai who reduced the same in writing in the information book and copies of the said information were taken and sent to the Senior P.I., Mahim Police Station, ACP, Mahim Division and DCP, Zone-IV, Matunga. PW 4 also sent Police Constable Dubey to Anti Narcotic Cell, C.B. C.I.D. office at Azad Maidan to bring the narcotic kit and Police Constable Mohite called two persons to act as panchas. The pre-trap panchanama was drawn at Exhibit 6 at the police station by PW 3. Panchas signed the same and the panchas took the search of police raiding party including the police vehicle bearing no.MH-01-5607 and nothing incriminating was found in the same. The raiding party proceeded towards Devdarshan Building, Moghal Lane, Mahim and on reaching there the informant came and met PI Sanghai and while the raiding party had kept a watch, at about 1.15 p.m. they saw two persons coming from Mahim Railway station side and near Johnson & Johnson Company. At that stage the informant pointed the person holding biscuit colour gunny bag in his hand as Mohammad Harun and the other person who was having beard as Sohel Ahmed and immediately thereafter the informant left. The raiding party arranged a trap on the two accused persons and they were intercepted. PW 4 Sanghai took the search of accused no.1 and found that he was having a bag / gunny bag type with biscuit colour and having wooden hand and on its both sides red colour with a picture of a rabbit and with writing "Smile it improves your face value". PI Sanghai opened the bag and found that there were two plastic bags with writing "Jaya Durga Garment Centre 24, Chowk Allahabad". Both the plastic bags were opened and they were found to contain rods of black colour and round colour substance about 8" to 9" long and 1" diameter covered with white plastic which was removed. The substance gave a strong smell. The rods along with the packets were weighed and they were found to be 10 Kgs. The small portion of one rod was taken and tested on the drug identification kit and the result was positive for charas. Two samples each of 24 gms. in small polythene packets were taken and both the sample packets were kept in brown colour packet, sealed and marked as "A-1" and "A-2". The remaining substance was kept in a white plastic bag, kept in a brown colour packet and marked as "A". All the three packets were tagged labels with signature of pancha i.e. PW 1 - Hemant Nijap. The plastic carry bags along with the white plastic which was used to wrap the substance was also packed and sealed in an envelope and marked as "A-3". On the personal search of accused no.1 a sum of Rs.20/- was recovered from his purse with an identity card like packet having the picture of God and some Urdu writing. The same were packed in an envelope and countersigned and sealed and marked "A-4". Whereas in personal search of accused no.2 a sum of Rs.30/- was found from his packet of Pathani dress, a ring having red stone and a bunch of keys were found. All these articles were kept in a paper envelope, sealed and marked as "B". All the recovered articles were taken charge by PW 4 and both the accused were asked to put their signatures or thumb impressions on the labels but they refused. Panchanama was drawn which was signed by the panchas and PW 3 put his signature.

(3.) As before the trial Court, the thrust of the arguments in this appeal by accused no.1 is the non-compliance of the requirements of Section 42(2), Section 50 and Section 57 of the NDPS Act. The learned counsel for the appellant further that the prosecution witnesses i.e. PW 2 to PW 4 were the police personnel and, therefore, their testimony was required to be put to strict proof. It was also alleged that PW 1, the panch witness was a professional panch.