PUSHPA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/accused has challenged the judgment and order dated 19.12.2003 passed by the learned Special Judge (NDPS Court), Nagpur in Special Criminal Case No. 12/1995 where by the learned Judge convicted the appellant/accused under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here in after referred to as 'NDPS Act', in short) and sentenced her to suffer rigorous imprisonment for six months and to pay fine of Rs. 1,000/, in default, to suffer R.I. for one month.

(2.) The prosecution case, in nutshell, can be stated as under:Head Constable Uttam Kamble (PW6) was attached to Narcotic Cell, Crime Branch, Nagpur. On 10.1.1995 at 14.50 hours, he along with PSI Warade and other staff including WPC Kusum, WPC Naseem proceeded on narcotic patrolling within the jurisdiction of Police Station, Ganeshpeth and Sakkardara. Prior to leaving the police station, he took an entry (Exh.37) in the station diary. When the raiding party reached at Mirchi Bazar Chowk, a secret information was received by them that a lady by name Pushpa Samarth (accused), aged about 3334 years, a resident of Bhande Plot, Dharpur Nagar, wearing a sky blue coloured saree, was coming to her house along with ganja at about 4.30 to 5.00 p.m. Accordingly, the raiding officer prepared a report (Exh.38) under section 42(1)(2) of the Act. The information was also communicated to PI Pande. Two panchas were called by PW6.

(3.) At the relevant time, PI Pande issued directions on the said report to conduct the raid. It is the case of prosecution that the house of accused was found and a trap was laid around her house. The accused reached to that place at about 5.10 p.m. She was encircled by the raiding party. It is the case of prosecution that on verifying that the accused was the same lady and her name was Pushpa Samarth, she was apprised about the information received and that her search is to be taken through the WPC. The accused was also asked to take personal search of panchas and other staff by any other person known to her, which she declined. The accused was informed that as per Section 50(1) of the NDPS Act there is a provision for such search being conducted in the presence of an Executive Magistrate or a Gazetted Officer or any other department and if she so desires, they can be kept present. The accused informed that she does not need the presence of any other officer and she informed that she can be searched through the WPC. An intimation (Exh.33) to that effect was given to the accused. The accused gave in writing on Exh.33 about her refusal to have a presence of Gazetted Officer or Executive Magistrate. Thereafter, WPC Kusum (PW4) was asked to take a personal search of the accused in a secluded place. The accused handed over the nylon bag to WPC Kusum. The said bag was searched in the presence of two panchas and it was found containing pink coloured polythene bag containing wettish ganja. WPC Kusum also took personal search of accused in a secluded place. The weight of ganja was 1 kg. The article of 10 grams of ganja was separated from the said ganja and remaining ganja contained in the polythene bag was again put in the nylon bag. PW6 sealed the sample and the remaining ganja separately sealed by putting label bearing signatures of panchas, accused and the raiding officer.