GHASIRAM KANHAYALAL SOLANKI Vs. UNION OF INDIA

JUDGEMENT

(1.) APPELLANT is challenging the judgment and order passed by the Special Judge in NDPS Special Case No.39 of 2004 dated 30th/31st October, 2007 whereby the Trial Court was pleased to convict the appellant for the offence punishable under section 21 read with section 8(c) & 29 of the NDPS Act and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1 lac and in default to undergo rigorous imprisonment for two years.

(2.) PROSECUTION case in brief is that the Narcotic Bureau received information that the appellant who is a proclaimed offender in NDPS Case No.181 of 2000 was assisted by co-accused in the said case viz. Smt. Hamida Syed Ali Shaikh. The information said that the appellant was arriving by Deheradun Express at Borivali Station at 4.00 hours in the morning on 11/10/2003 for the purpose of collecting the amount collected by the said Hamida Shaikh out of sale of heroin which was supplied by the appellant-accused. In view of the said report, a raiding party was organized and the appellant was apprehended at Borivali Station. Thereafter, after the procedure prescribed under section 50 was followed, personal search of the appellant-accused was undertaken in which one railway ticket from Khachrod to Mumbai Central and one excess fare ticket and Indian currency of Rs.1132/- was found. PROSECUTION case is that, thereafter, Ghasiram-accused led the raiding party to the place where money was kept. P.W. 1 - Sanjay B. Gokhale, Intelligence Officer of NCB knocked the door of the premises and the door was opened by a lady who gave her name as Saira Din Mohammed Shaikh. Thereafter, the said Saira opened the steel cupboard and took out a bag and gave it to P.W.1. The bag was found to be locked. She informed the members of the raiding party that the key of the lock was with Hamida and, thereafter, the bag was torn open by kitchen knife and currency notes to the tune of Rs.52,53,000/- were found. According to the prosecution, panchanama was prepared by Intelligence Officer P.W. 5 - Vijay Bhatia which was read over to panch witness and he signed the panchanama. Thereafter, statement of the appellant was recorded on 11/10/2003 by the Intelligence Officer P.W. 3 Jeetendra Shiva Dubey in the appellant's own handwriting at Exhibit-27. An arrest memo was prepared by P.W.3. Thereafter, statement of Saira was recorded on the same day which is at Exhibit-66. The premises of Hamida was searched. Thereafter, second statement of the appellant was recorded on 15/10/2003 which is at Exhibit-30 and, finally, his 3rd statement was recorded on 17/10/2003 which is at Exhibit-31. In these statements at Exhibits-30 and 31 names of Jyoti, Savitri and Papamani were given by the appellant. The appellant was, thereafter, produced before the Special Court on 21/10/2003 where he retracted his earlier statements. On 09/06/2004, the accused Chandrakant Koli was arrested for possessing 3 kilos of heroin and other co-accused Jyoti and Savitri and Papamani were also arrested. A complaint was lodged by P.W. 5 - Vijay Bhatia which is at Exhibit-1 dated 06/04/2004. In the said complaint, Hamida has not been mentioned as accused.

(3.) IT is further submitted by the learned Senior Counsel appearing on behalf of the appellant that on the one hand, the court had recorded a finding that grave doubt was created in respect of statement of Chandrakant Koli which was recorded by P.W.5 - Bhatia since he had to be admitted in the hospital as he had complained of assault and, on the other hand, court had accepted the statement of the appellant which was again recorded by P.W. 5 - Bhatia. Further, it is submitted that there was a discrepancy in the prosecution case regarding the price at which the heroin was sold. He submitted that the accused was alleged to have sold heroin at Rs.2,40,000/- per kg. He submitted that this was inherently not probable since Hamida could not have sold heroin at lesser rate than what was purchased by her from the appellant-accused. IT is then submitted that the excess fare receipt at Exhibit-46 indicated that the accused was carrying some excess luggage. However, no luggage was found with the appellant. He submitted that natural conduct would have been to find out whether the appellant was carrying any contraband with him. He then invited my attention to the statement of P.W.6. He submitted that this witness was declared hostile and was cross-examined. He submitted that contents of Exhibit-66 were not proved and in her cross-examination P.W. 6 has stated that she was not aware about the contents of the said statement and the said statement was read over to her by the Intelligence Officer. IT is, therefore, submitted that no reliance could be placed on the evidence of this witness or her statement at Exhibit-66 which is recorded by the Intelligence Officer. IT is submitted that there was no reason why explanation given by her that the said money was earned by her in the illicit liquor business should have been disbelieved by the court. IT is further submitted that, in fact, the alleged recording of the said statement itself was doubtful on account of discrepancy in the evidence of P.W. 10 - Ajit Pandurang Patil and P.W. 5 - Bhatia. He has further submitted that the statement was recorded in the presence of one Jathi Sashidharan who was not examined by the prosecution. IT is, therefore, submitted that since no contraband was seized, Trial Court had erred in convicting the appellant under section 21 read with section 8(c) and since the conspiracy had not been established between the appellant and other accused, the appellant-accused ought not to have been convicted under section 29 of the NDPS Act.