MOHAN RAMJI GOYAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal arises from the order of conviction and sentence passed by the learned 3rd Additional Sessions Judge, Nashik on 5/7/1989 in Sessions Case No. 37 of 1989. The appellant-accused came to be convicted for the offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and he has been sentenced to undergo RI for 10 years and to pay a fine of Rs. 1 lac in default thereof to suffer RI for two years. His property was directed to be confiscated to the State under Section 61 of the NDPS Act. He was in custody from 8/10/1988 to 10/3/1989 and, therefore, he was ordered to be given the benefit of set off under Section 428 of Cr. P. C. for the said period. While admitting this appeal, a Division Bench of this court continued him on bail.

(2.) AS per the prosecution PSI Prakash Sonar (PW 4) while on duty at Sarkarwada Police Station on 8/10/1988 received an information at about 8 p. m. that one person was coming from Shalimar Chauk with brown sugar wrappers for sale near Raviwar Karanja bus stop by the city bus coming via Ashok Stambha to Raviwar Karanja. PSI Sonar, therefore, submitted a report to this effect to his superior Shri Panditrao after recording the said information in the register and sought permission to effect the raid. Two panchas, namely, Yadav Sonu Patil (PW 1) and Sham Balu Barve were called in the police station and ASI Aher (PW 2) along with police constable Namdeo Jadhav and other constables disclosed them the information and stated that the raid was to be conducted for which they would act as panchas. PI Panditrao granted sanction for the raid and the raiding party reached the bus stop near Shani Mandir by walk at about 8. 10 to 8. 15 p. m. and kept waiting in the midst of the crowd. The accused, after some time, got down from the city bus and he was accosted by the police constable Namdeo Jadhav and was surrounded by the raiding party. He was searched and a match box containing five small wrappers of brown sugar was allegedly found in the right hand side pocket of his pant. The material was weighed along with the wrappers and it was found to be 1 gm. and 370 ml. gms. The wrappers were thereafter kept in the match box and sealed by PW 4 in the presence of two panchas. Panchanama of attachment was drawn and thereafter the accused and the property were taken to the police station by PSI Sonar and others. A report was submitted to PI Panditrao by PW 4 PSI Sonar and PI Panditrao directed to register the crime. Hence PW 2 Aher registered an FIR (Exh. 17) on 8/10/1988. On completion of the investigation, charge-sheet came to be filed and the charge was framed on 12/6/1989.

(3.) THE prosecution examined in all four witnesses, namely, Yadav Sonu Patil (PW 1) as a panch witness, ASI Vasant Aher (PW 2) attached to Sarkarwada Police Station, Shri Fakira Rote, Police Constable and Shri Prakash Sonar, PSI (PW 4 ). The trial court on assessment of the oral and documentary evidence as placed before it by the prosecution, held that the prosecution had proved its case beyond a reasonable doubt that the accused Mohan Ramji Goyal was found in possession of five brown sugar wrappers as kept in the match box on his person in the right side pocket of his trouser in the night of 8/10/1988 near Shani Mandir bus stop of Raviwar Karanja. In an appeal arising from an order of conviction and sentence under the NDPS Act, it is necessary to examine whether the requirements of Sections 42, 50 and 57 of the said Act were complied with by the prosecution right from the stage of receiving the information till the stage of submitting a report to the Senior Officer after completing the raid. In the impugned order of conviction and sentence this requirement appears to be lacking and, therefore, as an appellate court, it is necessary to examine the evidence, oral and documentary that was placed before the trial court by the prosecution.