NANDKISHORE @ BHIMKUMAR BHAJUMAN SINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/accused is challenging the Judgment and Order dated 30/12/2011 passed by the learned Additional Sessions Judge, Jaysingpur, District Kolhapur in Sessions Case No.4 of 2010 thereby convicting the appellant/accused of the offence punishable under Sec. 20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'N.D.P.S.Act' for the sake of brevity) and sentenced to suffer rigorous imprisonment for a term of 10 years apart from directing him to pay fine of Rs. 75,000/and in default to suffer further rigorous imprisonment for three years.

(2.) The facts of the prosecution case are thus :

(3.) I heard the learned Advocate appearing for the appellant/accused. He argued that when, according to the prosecution case, the appellant/accused had informed the police party that he is carrying ganja in the bag, it was incumbent on the part of the police to call the Gazetted Officer or the Magistrate or to take the appellant/accused to the Gazetted Officer or Magistrate for conducting his personal search. The learned Advocate appearing for the appellant/accused attempted to capitalize the typing mistake found in recording the deposition of P.W.No.6 Pruthviraj Patil API to the effect that ganja was found in the pocket of the appellant/accused. But at this stage itself, it needs to be made clear that the Marathi deposition, which prevails over the English deposition, candidly shows that the ganja was not found in the personal search of the appellant/accused, but in the bag carried by him. The learned Advocate appearing for the appellant/accused argued that there is discrepancy in the timings coming on record from the evidence of P.W.No.1 Shahaji Bandgar as well as P.W.No.6 Pruthviraj Patil API. He argued that P.W.No.1 Shahaji Bandgar API has deposed that he was directed by P.W.No.6 Pruthviraj Patil API to go for nakabandi, but immediately P.W.No.1 Shahaji Bandgar has deposed that even P.W.No.6 Pruthviraj Patil API was accompanying them. The timings coming on record are varying from 8.20 p.m. to 8.55 p.m and, therefore, the case of the prosecution becomes suspect. The learned Advocate further argued that even evidence of P.W.No.3 Ananda Chaugule shows that work of carrying out panchanama took time of two hours and here also there is discrepancy in respect of timing. The learned Advocate further argued that for want of compliance of Sec. 50 of the N.D.P.S.Act, the impugned Judgment and Order convicting the appellant/accused can not be sustained.